Master Subscription Agreement

This Master Subscription Agreement (“Agreement”) is made and entered into between Naveego, Inc., a Michigan corporation with an address of 1771 Park Drive, Traverse City, Michigan, 49686 (“Naveego”) and the party accepting the terms hereof as provided below (the “Subscriber”) and governs Subscriber’s use of Naveego’s software as a service (the “Services”).

BY ACCEPTING THIS AGREEMENT, EITHER BY MANIFESTING YOUR ASSENT TO ITS TERMS BY CREATING AN ACCOUNT THROUGH NAVEEGO’S WEBSITE, BY CLICKING AN “I AGREE” BUTTON, OR BY EXECUTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF SUBSCRIBER IS A LEGAL ENTITY, THE PARTY SIGNING OR ACCEPTING THIS AGREEMENT ON BEHALF OF SUCH ENTITY REPRESENTS AND WARRANTS THAT SUCH PARTY IS AUTHORIZED TO BIND SUCH ENTITY.

IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.

This Agreement was last updated on January 7th, 2016.  It is effective between Naveego and the Subscriber as of the date Subscriber’s accepts this Agreement as described above.

 

  1. 1. Services

1.1               Use of Services.  Subject to the terms and conditions of this Agreement, Naveego grants to Subscriber a limited, worldwide, non-exclusive, non-transferable right during the term of this Agreement to use the Services solely in connection with its internal business operations. Subscriber’s right to use the Services is subject to and contingent upon Subscriber’s compliance with the terms and conditions of this Agreement. Subscriber’s use of the Services shall commence on the date of site activation, which shall be the date Subscriber’s site is live on Naveego’s servers and a login name and password are provided, or when a free trial is commenced as described herein.

1.2               Provision of Services/Support.  Subject to the terms and conditions of this Agreement, Naveego shall (i) provide the Services and Basic Support for the Services at no additional cost and/or provide Customization or additional Configuration if purchased separately; (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for (a) planned downtime (of which Naveego shall give at least 8 hours notice via the Services and which Naveego, to the extent practicable, shall attempt to schedule during the weekend hours from 9:00 p.m. Friday to 3:00 a.m. Monday, Eastern Time) or (b) any unavailability caused by a Force Majeure event as described in Section 20 hereof; and (iii) provide the Services in accordance with applicable laws, statutes, regulations and ordinances. For purposes hereof, “Basic Support” shall mean the ability for Subscriber to report issues and request assistance with the use of the Service, with an unlimited number of cases, via email and phone during Naveego’s operating hours with a response time of 1-2 business days, excluding holidays; “Customization” shall mean additional reports, dashboards, widgets/charts, and/or metrics, approved by Naveego, with scope of work defined in a separate sales agreement; and  “Configuration” shall mean changes beyond the initial setup period due to changing business requirements, or new or updated data sources, approved by Naveego, with scope of work defined in a separate sales agreement.

1.3               Free Trial.  If Subscriber registers for a free trial, Naveego shall make all or part of the Services available free of charge until the earlier of (i) the end of the free trial period for which Subscriber registered to use the applicable Services, or (ii) the start date of any paid Services ordered by Subscriber. Additional terms and conditions for the free trial may appear on the trial registration web page and are incorporated into this Agreement by reference. Data brought into the Services and any customizations made to Services (such as customized dashboards, reports, or alerts) are subject to loss unless a paid subscription is purchased prior to the end of the trial period. NOTWITHSTANDING SECTION 11 (DISCLAIMER OF WARRANTIES), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY.

  1. 2. User Subscriptions

Additional subscriptions or additional designated users (each considered a “Subscriber” and subject to the terms hereof) may be added during the applicable subscription term through the Services control panel. Subject to the terms of this Agreement, Subscriber may allow its agents and independent contractors (each, a “User”) to use the Services solely for the benefit of Subscriber; provided, however, Subscriber remains responsible for any breach of this Agreement by such User. Any non-authorized use of the Services by any other person or entity is forbidden and a violation of this Agreement.

  1. 3. Subscriber Obligations

Subscriber shall (i) comply with all applicable laws, statutes, regulations and ordinances, (ii) only use the Services for legitimate business purposes, (iii) possess the authority, rights, or permissions to use all domains registered to the Services, (iv) obtain any necessary consents from its employees, (v) be responsible for its compliance with this Agreement, (vi) be responsible for the accuracy, quality and legality of its data and of the means by which Subscriber acquired the data, and (vii) use the Services only in accordance with this Agreement..

  1. 4. Use Restrictions

Except as otherwise explicitly provided in this Agreement, Subscriber will not, and will not permit or authorize Users or other third parties to: (i) sell, resell, rent, lease, or otherwise permit third parties to use the Services; (ii) use the Services to provide services to third parties; (iii) circumvent or disable any security or other technological features or measures of the Services; (iv) make the Services available to anyone other than the Subscriber and authorized Users; (v) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (vi) use the Services to store or transmit malicious code; (vii) use the Services to filter, screen, manage or censor Internet content for consumers without permission from the affected consumers and Naveego’s express prior written approval which may be withheld in Naveego’s sole discretion; (viii) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (ix)  access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; nor (x) attempt to gain unauthorized access to the Services or their related systems or networks.  Notwithstanding the foregoing, Subscriber may allow its customers to access and use the Services in connection with Subscriber’s customers’ data, provided that Subscriber is solely responsible for any such use by its customers.

  1. 5. Protection against Unauthorized Use

Subscriber will use its best efforts to prevent any unauthorized use of the Services and related documentation and immediately notify Naveego in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Naveego to prevent or terminate unauthorized use of the Services. 

  1. 6. Account Information and Use

Subscriber is solely responsible for all activity occurring under Subscriber’s user accounts and will abide by all applicable local, state, national, and foreign laws, treaties and regulations in connection with Subscriber’s use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. Subscriber will: (i) notify Naveego immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) not impersonate another Naveego user or provide false identity information to gain access to or use the Services; and (ii) be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership and right to use all data submitted by Subscriber in the course of receiving the Services. Subscriber explicitly consents and agrees to the collection and processing of personal and personally identifiable information in the United States. Subscriber, on its own behalf and on behalf of all users of Subscriber’s user accounts, hereby expressly waives any rights that it may have under the EU Data Protection Directive and the Federal Law on the Protection of Personal Data Possessed by Private Persons. Subscriber warrants and agrees that it will obtain explicit consent from all users of Subscriber’s user accounts to the collection and processing of personal and personally identifiable information in the United States and to the waiver of any rights that users of Subscriber’s user accounts may have under the EU Data Protection Directive and the Federal Law on the Protection of Personal Data Possessed by Private Persons.

  1. 7. Intellectual Property Rights

7.1               Ownership; Protection.  The Services and all related intellectual property rights are the exclusive property of Naveego or its licensors. All right, title and interest in and to the Services, any modifications, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, trademarks and all intellectual property rights in the Services remain exclusively with Naveego or its licensors. The Services are valuable, proprietary, and unique, and Subscriber agrees to be bound by and observe the proprietary nature of the Services. The Services contain material that may be protected by patent, copyright and trade secret law. Subscriber may not remove any proprietary notice of Naveego or any third party. The Services may include software products licensed from third parties. Such third parties have no obligations or liability to Subscriber under this Agreement but are third party beneficiaries of this Agreement. All rights not granted to Subscriber in this Agreement are reserved to Naveego. No ownership of the Services passes to Subscriber. Naveego may make changes to the Services at any time without notice. Except as otherwise expressly provided, Naveego grants no express or implied right under Naveego patents, copyrights, trademarks, or other intellectual property rights.   Without limiting the foregoing, Subscriber shall not (i) create derivate works based on the Services except as authorized herein, (ii) copy, frame or mirror any part or content of the Services, other than copying or framing on Subscriber’s own intranets or otherwise for Subscriber’s own internal business purposes, (iii) reverse engineer the Services, or (iv) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

7.2               Subscriber’s Applications and Code. If Subscriber, a third party acting on Subscriber’s behalf, or a User creates applications or program code relating to the Services, Subscriber authorizes Naveego to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Naveego to provide the Services in accordance with this Agreement. Subject to the above, Naveego acquires no right, title or interest from Subscriber or Subscriber’s licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.

7.3               Subscriber’s Data. Subject to the limited rights granted by Subscriber hereunder, Naveego acquire no right, title or interest from Subscriber or Subscriber’s licensors under this Agreement in or to Subscriber’s Data, including any intellectual property rights therein.      

7.4               Suggestions. Naveego shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Users, relating to the operation of the Services.

  1. 8. Term and Termination

The term of this Agreement shall commence on the date Subscriber accepts this Agreement as provided above and shall continue for the period as specified in Agreement, unless terminated in accordance with the terms of this Agreement. The term of this Agreement shall automatically renew for subsequent periods of the same length as the initial term specified unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current term. Naveego may terminate this Agreement and the provision of Services immediately and without prior notice, upon the occurrence of any of the following: (i) a breach of or failure to comply with any provision of this Agreement by Subscriber including, without limitation, the provisions relating to the payment of fees hereunder; (ii) if Subscriber engages in, causes or permits fraud, dishonesty or other misconduct in the performance of its duties and responsibilities under this Agreement; or (iii) if Subscriber is the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

  1. 9. Fees and Payment for Services

9.1         Fees. Subscriber shall pay all fees specified. Except as otherwise specified herein, (i) fees are based on Services purchased and not actual usage and (ii) payment obligations are non-cancelable and fees paid are non-refundable. Subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for Subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.

9.2         Invoicing and Payment. Subscriber will provide Naveego with valid and updated credit card information or with alternative documentation reasonably acceptable to Naveego. If Subscriber provides credit card information to Naveego, Subscriber authorizes Naveego to charge such credit card for all Services for the initial subscription term and any renewal subscription term(s) as set forth in Section 8. Such charges shall be made in advance, either monthly or in accordance with any different billing frequency stated in the Services. If Services specify that payment will be by a method other than a credit card, Naveego will invoice Subscriber in advance. Unless otherwise stated Services, invoiced charges are due net 30 days from the invoice date. Subscriber is responsible for providing complete and accurate billing and contact information to Naveego and notifying Naveego of any changes to such information.

9.3          Overdue Charges. If any charges are not received from Subscriber by the due date, then at Naveego’s discretion, (i) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (ii) Naveego may condition future subscription renewals on payment terms shorter than those specified above.

9.4          Returned Check Charges. Subscriber agrees to pay Naveego a service charge of $25.00 for each check returned from Subscriber’s bank account, and shall pay the full amount of the returned check, as well as the service charge, with certified funds within forty-eight (48) hours.

9.5          Suspension of Service and Acceleration.  If any amount owing by Subscriber under this or any other agreement for the Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts Subscriber has authorized Naveego to charge to Subscriber’s credit card), Naveego may, without limiting Naveego’s other rights and remedies, accelerate Subscriber’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services until such amounts are paid in full. Naveego will give Subscriber at least 7 days’ prior notice that Subscriber’s account is overdue, in accordance with Section 19, before suspending Services to Subscriber.

9.6          Taxes. Unless otherwise stated, Naveego’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Subscriber is responsible for paying all Taxes associated with Subscriber’s purchases hereunder. If Naveego has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Subscriber, unless Subscriber provides Naveego with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Naveego is solely responsible for taxes assessable against it based on Naveego’s income, property and employees.

  1. 10. Independent Contractor

Naveego shall provide the Services as described hereunder exclusively as an independent contractor of Subscriber.  Nothing contained in this Agreement shall be deemed to create any association, partnership, joint venture, or relationship of principal and agent or employer and employee between the parties hereto or to provide either party with the right, power or authority, whether express or implied, to create any such duty or obligation on behalf of the other party.

  1. 11. Disclaimer of Warranties

THE SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS.  NAVEEGO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT NAVEEGO SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, INTANGIBLE OR EXEMPLARY DAMAGES (EVEN IF NAVEEGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM THE SERVICES PROVIDED BY NAVEEGO.  IN NO EVENT SHALL NAVEEGO’S TOTAL LIABILITY TO SUBSCRIBER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT OF FEES PAID BY SUBSCRIBER UNDER THIS AGREEMENT WITHIN THE MOST RECENT SIXTY (60) DAYS OF THIS AGREEMENT. 

NAVEEGO DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR AGAINST INFRINGEMENT. NAVEEGO DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. NAVEEGO EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE SUBSCRIBER’S USE OF THE SERVICES.

  1. 12. Non-Disclosure

During the term of this Agreement, a Party (the “Receiving Party”) may have access to and become familiar with information which the other Party (the “Disclosing Party”) considers confidential and/or proprietary including, without limitation, financial information, account and customer information, materials, documents, forms, fee and pricing structures, business processes, know-how, techniques, passwords, and compilations of information, records, and specifications that are owned by the Disclosing Party and are regularly used in the operation of the business of the Disclosing Party (“Confidential Information”). Except as otherwise provided herein or necessary to fulfill its functions and obligations hereunder, the Receiving Party shall not, either during the term of this Agreement or at any time thereafter, directly or indirectly; (i) disclose any Confidential Information of the Disclosing Party; (ii) effect, cause or permit the modification, alteration, adaptation, amendment, reverse engineering, decompilation, disassembly or other translation of any Confidential Information; (iii) produce derivative works based upon, related to or derived from any Confidential Information; nor (iv) alter, change, or remove from any item of Confidential Information any identification, including copyright and trademark notices.  All files, records, documents, drawings, specifications, passwords, software and similar items relating to the Confidential Information or Disclosing Party’s business (including copies, summaries, or disks or other medium for electronic storage of information), whether supplied to the Receiving Party, acquired by the Receiving Party during the provisions of Services or otherwise coming into the Receiving Party’s possession, shall remain the exclusive property of and shall be surrendered to the Disclosing Party upon termination of this Agreement. 

Each Party acknowledges that (i) the restraints imposed upon it pursuant to this Section are no greater than is reasonably necessary to preserve and protect the legitimate business interests of the other Party, (ii) said restraints will not impose an undue hardship upon it, and (iii) any violation or threatened violation of said restraints will irreparably injure the other Party. Accordingly, an aggrieved Party may, in addition to pursuing its other remedies, obtain such equitable and injunctive relief (including, but not limited to, preliminary and permanent injunctions) from any court of competent jurisdiction, as may be necessary to enjoin any such violation of the foregoing restraints, and further, no bond or other security shall be required to obtain such relief. The terms of this Section shall survive the termination of this Agreement.

  1. 13. Indemnification

Subscriber shall indemnify and hold harmless Naveego from any and all third party claims, demands, suits, actions, proceedings, loss, cost and damages of any kind, including reasonable attorney’s fees, caused by or arising out of, or contributed to, in whole or in part, by reasons of any act, omission, professional error, fault, mistake or negligence of Subscriber, its employees, agents, representatives or subcontractors in connection with or incidental to the performance of this Agreement.

  1. 14. Applicable Law

This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan and the venue for any dispute shall rest in the County of Grand Traverse, State of Michigan. If any provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

  1. 15. Attorney Fees; Collection

The prevailing party in any legal proceeding instituted in connection with a party’s right to enforce the remedies contained herein shall be entitled to recover litigation expenses, court costs and reasonable attorney fees from the non-prevailing party.  Notwithstanding the foregoing, Naveego shall be entitled to recover from Subscriber, and Subscriber hereby agrees to pay, any and all costs and expenses incurred by Naveego in connection with the collection of any amounts due hereunder.

  1. 16. Assignment 

Subscriber may not assign this Agreement, in whole or in part, without Naveego’s prior express written consent, which shall not be unreasonably withheld or delayed. Any attempted assignment without such written consent shall be void. In the event of a sale of all or any portion of Naveego, Naveego shall be permitted to assign to the purchaser of same, and Subscriber shall release Naveego from, all of its rights, interests and obligations under this Agreement, provided that such purchaser expressly assumes this Agreement, its obligations hereunder and at the time of assignment has the ability to meet all of the terms and conditions hereof.  In the event of such assignment, Naveego shall immediately provide Subscriber with written notice giving the name and address of the new party. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Notwithstanding the foregoing, if Subscriber has purchased the Services through a value added reseller authorized and approved by Naveego (a “VAR”), Naveego may delegate and/or assign to such VAR certain duties, obligations and rights related to the performance and enforcement of this Agreement including, without limitation, those duties, obligations and rights arising under Sections 1.2 and 9 hereof, and by Subscriber accepting this Agreement, Subscriber agrees, if applicable, to be bound by any such delegation and/or assignment.

  1. 17. Modification

The terms of this Agreement shall not be altered, modified or changed, except upon the mutual, written agreement of Naveego and the Subscriber.

  1. 18. Entire Agreement

This Agreement constitutes the entire understanding and agreement between the parties with respect to the subject matter contained herein. All other prior agreements between the parties, whether written or oral with respect to the subject matter of this Agreement are void and of no further force or effect.

  1. 19. Notices

Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by either electronic means or certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given, if by electronic means within 24 hours or two business days following the date of mailing or one business day following delivery to a courier.

  1. 20. Force Majeure

Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond the effected party’s reasonable control, so long as the effected party uses all commercially reasonable efforts to avoid or remove such causes of non-performance.

  1. 21. Waiver

The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

  1. 22. Severability

If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Services will immediately be terminated.

 

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