MASTER SUBSCRIPTION SERVICE TERMS

  1. DEFINITIONS; ORDERING
    1. Definitions. Capitalized terms referred to herein that are not defined herein shall have the meanings set forth on Exhibit A hereto.
    2. Ordering. TOSS shall provide Client with the specific services (the “Services”) specified on a Sales Order. Client’s execution of an Order Form constitutes a binding commitment to purchase the items described on such Order Form under the terms and conditions of this Agreement. All mutually-executed Order Forms are incorporated herein by reference.
  2. SERVICES
    1. Services. Client acknowledges that (i) the Subscription Service is provided in accordance with and is subject to the provisions set forth in this Agreement, the applicable Sales Order as well as the additional terms and conditions set forth on Exhibit B hereto and (ii) the Professional Services are provided in accordance with and are subject to the provisions set forth in this Agreement and the applicable Sales Order. Any conflict between the terms and conditions set forth in this Agreement and any Sales Order shall be resolved in favor of the Sales Order.
    2. Changes to Sales Order. Either Party may request a change to a Sales Order, and for such purpose shall submit to the other Party a written notice (“Change Request”) setting forth the requested change and the reason for such request. Within five (5) business days (or such other period of time as agreed by the Parties) after the receipt of such Change Request, the Parties shall discuss the necessity, desirability and/or acceptability of the Change Request. When and if both Parties have agreed in writing upon the changes, and any resulting change in the estimated (or fixed) fees for the Services, the Parties shall complete and execute a new or revised Sales Order. In the event that Client elects to upgrade to a new version of the Subscription Service or elects to license additional functionality and features offered by TOSS, the Parties will enter into a new or amended Sales Order specifying such new version and/or such additional functionality and the additional fees to be paid by Client.
  3. FEES; PAYMENT TERMS
    1. Fees. Client agrees to pay TOSS for Services provided and expenses incurred on the basis and at the rates specified in each Sales Order. Unless otherwise set forth on the Sales Order, payment shall be due upon Client’s execution of the Sales Order and shall be made in US Dollars. The initial payment shall be made by either check, credit card or ACH. Recurring subscription monthly and annual payments shall be made by credit card or ACH. Client shall also pay all pre-approved reasonable travel and out-of-pocket expenses incurred by TOSS in connection with any Services rendered. Any support or remediation services provided by TOSS in connection with the Subscription Services which resulted from the Client’s endpoint/point of access (PC, iPad, laptop, etc.), the operating system that runs such device, or other local device issues such as hardware, software, virus, spam, the internet, Wi-Fi, or LAN at the Client’s network shall be billable at TOSS’s then professional service rates.
    2. Disputed Charges. If Client disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the Parties, Client shall pay the amounts due under this Agreement less the disputed amount, and the Parties shall diligently proceed to resolve such disputed amount. An amount will be considered disputed in good faith if (i) Client delivers a written statement to TOSS on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by Client, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from Client that are not in dispute have been paid as and when required under this Agreement.
    3. Taxes. Fees are exclusive of taxes. Client shall be responsible for the payment of all sales, use and similar taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of TOSS and any taxes or obligations imposed upon TOSS under federal, state and local wage laws.
  4. CONFIDENTIALITY
    1. Confidential Information. During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature. The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The Parties expressly agree that the terms and pricing of this Agreement are Confidential Information and Client further agrees that it shall not use the Services for the purposes of conducting comparative analysis, evaluations or product benchmarks with respect to the Services and will not publicly post any analysis or reviews of the Services without TOSS’s prior written approval. A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights.
    2. Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
    3. Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
  5. LIMITED WARRANTY
    1. Subscription Service Warranty. TOSS warrants that during the term of any Sales Order for the Subscription Service, the Subscription Service will conform, in all material respects, with its Documentation. TOSS does not warrant that it will be able to correct all reported defects or that use of the Subscription Service will be uninterrupted or error free. TOSS makes no warranty regarding features or services provided by third parties. For any breach of the above warranty, TOSS will, at no additional cost to Client, provide remedial services necessary to enable the Subscription Service to conform to the warranty. Client will provide TOSS with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. The remedies set out in this subsection are Client’s sole remedies for breach of the above warranty. Such warranty shall only apply if the Subscription Service has been utilized by Client in accordance with the Sales Order and this Agreement.
    2. Professional Services Warranty. TOSS warrants that any Professional Services provided hereunder shall be provided in a competent manner in accordance with any specifications set forth in the Sales Order in all material respects. TOSS further warrants that any Work Product provided pursuant to any Professional Services engagement shall comply, in all material respects, with the specifications set forth in the applicable Sales Order. If the Services are not performed as warranted or the Work Product does not so comply, then, upon Client’s written request, TOSS shall promptly re-perform, or cause to be re-performed, such Professional Services, at no additional charge to Client. Such warranties and other obligations shall only survive for thirty (30) days following the completion of the Professional Services or the delivery of each applicable portion of the Work Product, as the case may be. Such re-performance shall be Client’s exclusive remedy and TOSS’s sole liability for any such non-performance. If, however, after repeated efforts, TOSS is unable to remedy such defect in any Work Product, then Client’s sole remedy and TOSS’s entire liability shall be to refund to Client any amounts previously paid by Client for the particular deficient Professional Services or Work Product.
    3. No Other Warranty. TOSS DOES NOT REPRESENT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SUBSCRIPTION SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CLIENT’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 5 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY TOSS. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CLIENT ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE ACCURATE OR SUFFICIENT FOR CLIENT’S PURPOSES.
  6. LIMITATION OF LIABILITY.
    1. Consequential Damage Waiver. Except as may arise out of either Party’s breach of Section 4, neither Party will be liable to the other or any third party for loss of profits, or special, indirect, incidental, consequential or exemplary damages, including lost profits and costs, in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages.
    2. Limitation of Liability. Except as may arise out of TOSS’s breach of Section 4 or its indemnification obligations set forth in Section 9.1 below, the total cumulative liability of TOSS to Client for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the Services fees paid by Client to TOSS under the Sales Order for the Services which form the subject of the claim during the six (6) month period immediately preceding the event giving rise to the claim. The provisions of this Agreement allocate risks between the Parties. The pricing set forth in each Sales Order reflects this allocation of risk and the limitation of liability specified herein.
  7. TERM
    1. Term. This Agreement will commence on the Effective Date as set forth above and will continue in effect until otherwise terminated in accordance with Section 7.2 below. The term of each Sales Order for the Subscription Service shall be set forth on the Sales Order (together with any renewal term, the “Subscription Term”). Upon the expiration of the initial term of any Sales Order or any renewal term, unless either Party provides the other with written notice of its election not to renew such Order Form at least sixty (60) days prior to such renewal date, the Sales Order will automatically renew, for a term equal in duration to the initial term of such Sales Order at, subject to the following sentence, the rates specified on the Sales Order. TOSS reserves the right to change the rates, applicable charges and usage policies and to introduce new charges, for such Sales Order upon providing Client written notice thereof (which notice may be provided by e-mail) at least 60 days prior to the then current renewal date of the Sales Order.
    2. Termination. Notwithstanding the foregoing, either Party may terminate this Agreement or any Sales Order (i) immediately in the event of a material breach of this Agreement or any such Sales Order by the other Party that is not cured within thirty (30) days of written notice thereof from the other Party, or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Termination of a Sales Order shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Sales Orders. Either Party may also terminate this Agreement upon no less than sixty (60) days’ prior written notice to the other Party for any reason, if at such time there are no outstanding Sales Orders then currently in effect. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Sales Order.
    3. Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Sales Order, TOSS shall no longer provide the applicable Services to Client and Client shall cease and cause its Users to cease using the Services. Upon termination of this Agreement or any applicable Sales Order for the Subscription Service by TOSS due to Client’s uncured breach, in addition to any other remedies TOSS may have for such breach at law or in equity, Client shall pay TOSS for all fees that had accrued prior to the termination date and, as liquidated damages and not as a penalty, Client shall continue to pay TOSS for all monthly service fees that would have continued to accrue through the end of the then current term of the Sales Order had it not been so terminated. In addition to the foregoing, TOSS also reserves the right, in its sole and absolute discretion, to suspend providing the Services and Client agrees that TOSS may suspend Client’s access to the Subscription Service at any time, without having to terminate this Agreement or a Sales Order, if Client is more than thirty (30) days late with respect to any payments due hereunder. Upon such suspension, Client shall still be liable for all payments that have accrued prior to the date of suspension and that will accrue throughout the remainder of the term. TOSS will not be obligated to restore access to the Services until Client has paid all fees owed to TOSS. Except as expressly provided herein, termination of this Agreement by either Party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such Party. Upon termination of this Agreement, each Party shall promptly return or destroy all Confidential Information of the other Party in its possession.
  8. OWNERSHIP; USE OF CONTENT; OBLIGATIONS
    1. Subscription Service. Client acknowledges and agrees that as between TOSS and Client, all right, title and interest in and to the Subscription Service (excluding any Client Content and Client Applications), TOSS Content and all of TOSS’s proprietary technology, including, without limitation, all software, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available to Client by TOSS in providing the Subscription Service and all derivatives thereof are and shall remain TOSS’s or its licensors’. The TOSS name, all TOSS logos, and the product names associated with the Subscription Service are trademarks of TOSS or third parties, and no right or license is granted to use them. Client shall not remove any TOSS trademark or logo from the Subscription Service. During the term of this Agreement, TOSS grants to Client a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.2), royalty-free right to use, display, transmit, and distribute the TOSS Content solely in connection with Client’s permitted use of the Subscription Service. TOSS shall have the right to collect, use and distribute aggregated information, analysis, statistics, related benchmarking algorithms and other data generated by the Subscription Service (or derived from Client’s use of the Subscription Service) provided, however, that TOSS shall not disclose any such data unless such data is in an aggregated form that would not permit a third party to identify the data as associated with Client or any of its Users.
    2. Client Content. Client and/or its licensors retains ownership of all right, title and interest in and to all Client Content and Client Applications. During the applicable Subscription Term, Client hereby grants to TOSS a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.2), royalty-free right to use, host, perform, modify, display, transmit, download and distribute the Client Content and Client Applications solely as necessary to provide the Subscription Service to Client. Additionally, Client understands that the technical processing and transmission of the Service, including any Client Content and Client Applications, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices, and Client consents to such transmission and changes. Upon termination of the Subscription Service, TOSS shall make such Client Content available to Client in a mutually agreed upon format.
    3. Client Obligations. Client is solely responsible for all Client Content and Client Applications and Client shall be solely responsible for complying with any applicable laws relating to its use of the Service. Client shall provide to TOSS the license keys for the Client Applications. TOSS does not guarantee the accuracy, integrity or quality of such Client Content and Client Applications. Neither Client nor its Users shall use the Subscription Service to: (a) send, upload or otherwise transmit any Client Content that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any Client Content that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Subscription Service or networks connected to the Subscription Service; or (e) violate any applicable law or regulation.
    4. Work Product. Client will have a non-exclusive, non-transferable license to use any Work Product developed by TOSS in the performance of the Professional Services and delivered to Client, upon Client’s payment in full of all amounts due hereunder, solely for Client’s internal use. TOSS retains ownership of all information, software and other property owned by it prior to this Agreement or which it develops independently of this Agreement and all Work Product compiled or developed by TOSS in the performance of this Agreement. TOSS may utilize any and all methods, computer software, know-how or techniques related to programming and processing of data, developed by it while providing the Services and may incorporate the Work Product in future releases of any of its products or services.
    5. Leased Appliance. If TOSS has provided an appliances to Client as specified in a Sales Order (the “Leased Appliance”), TOSS shall lease such Leased Appliance to Client during the terms of the Sales Order. Client shall use the Lease Appliance solely at Client’s location specified in the Sales Order and solely to manage and provide printing services and for active directory backup. So long as Client shall not be in default of any of the provisions of this Agreement, TOSS will not disturb Client’s quiet and peaceful possession of the Lease Appliance. TOSS makes no representation or warranties, whether implied or expressed, with respect to a Lease Appliance and each Lease Appliance is provided “as is”. Title to each item of Lease Appliance shall remain with TOSS at all times, and Client shall have no right, title or interest therein, except as expressly set forth in this section for such Lease Appliance. Client at its expense will protect and defend TOSS’s title and the interest to the Lease Appliance and will keep the Lease Appliance free and clear from any and all claims, liens, encumbrances and legal processes of Client’s creditors and other persons. Client shall not move any Lease Appliance from the location shown on the applicable Sales Order without in each instance obtaining TOSS’s prior written consent thereto. All items of Lease Appliance shall at all times be and remain personal property notwithstanding that any such Lease Appliance may now or hereafter be attached or fixed to realty. Client shall use the Lease Appliance in a good and careful manner and in compliance with applicable operating instructions and all applicable laws and regulations, including without limitation all applicable environmental laws and regulations, and for no purpose other than that for which such Lease Appliance was designed. Client, at its sole cost and expense, shall maintain the Lease Appliance in good repair, condition and working order. TOSS shall have the right, upon reasonable prior notice to Client and during Client’s regular business hours, to inspect the Lease Appliance at its location.

    THE PARTIES ACKNOWLEDGE THAT EACH LEASE OF A LEASED APPLIANCE CONSTITUTES A NET LEASE AND PAYMENTS UNDER THE APPLICABLE SALES ORDER ARE TO BE MADE WITHOUT NOTICE OR DEMAND AND WITHOUT ABATEMENT, DEDUCTION OR SET-OFF OF ANY AMOUNT WHATSOEVER, AND CLIENT FURTHER ACKNOWLEDGES THAT ITS OBLIGATION TO PAY PAYMENTS AND ANY OTHER AMOUNTS OWING HEREUNDER AND UNDER ANY SALES ORDER SHALL BE ABSOLUTE AND UNCONDITIONAL.

  9. INDEMNIFICATION
    1. TOSS Indemnification. Subject to Section 9.3 below, TOSS will indemnify, defend and hold Client and its Affiliates harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) incurred arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Client or any of its Affiliates alleging that the use of the Services or Work Product as permitted hereunder infringes any United States copyright or trademark, or constitutes a misappropriation of a trade secret of a third party. Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Services or Work Product in violation of this Agreement or applicable law, (b) use of the Services or Work Product after TOSS notifies Client to discontinue use because of an infringement claim, (c) any claim relating to any third party products or services or Client Content or Client Applications, (d) modifications to the Services or Work Product made other than by TOSS (where the claim would not have arisen but for such modification), (e) the combination, operation, or use of the Work Product with software or equipment which was not provided by TOSS, to the extent that Client’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (f) compliance by TOSS with Client’s custom requirements or specifications if and to the extent such compliance with Client’s custom requirements or specifications resulted in the infringement. If the Services or Work Product are held to infringe, TOSS will, at its own expense, in its sole discretion use commercially reasonable efforts either (a) to procure a license that will protect Client against such claim without cost to Client; (b) to replace the Services or Work Product with non-infringing Services or Work Product; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement or the applicable Sales Order and refund to the Client any prepaid unused fees paid to TOSS for the infringing Services or Work Product. The rights and remedies granted Client under this Section 9.1 state TOSS’s entire liability, and Client’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statutory or common law or otherwise.
    2. Client Indemnification. Subject to Section 9.3 below, Client shall indemnify, defend, and hold TOSS and its Affiliates harmless from and against any and all Losses resulting from a claim, suit, action, or proceeding brought by any third party against TOSS or any of its Affiliates that arises out of or results from a claim (i) alleging that the Client Content or Client Applications, or any use thereof, infringes the intellectual property rights or proprietary rights of others, or has caused harm to a third party, or (ii) arising out of Client’s breach of Sections 8.3 above or violation of any applicable law or regulations.
    3. Indemnification Procedure. The indemnified Party shall (i) promptly notify the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s cost).
  10. GENERAL PROVISIONS
    1. Entire Agreement and Controlling Documents. This Agreement, including all Exhibits hereto and all Sales Orders, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns. Only a written instrument that refers to this Agreement or the applicable Sales Order and that are duly signed by the authorized representatives of both Parties may amend this Agreement or such Sales Order. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by Client shall be of no force or effect, even if the order is accepted by TOSS. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof.
    2. Assignment. This Agreement shall be binding upon and for the benefit of TOSS, Client and their permitted successors and assigns. Either Party may assign this Agreement and all Sales Orders as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Except as expressly stated in this Agreement, neither Party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void. TOSS may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that TOSS shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their compensation.
    3. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA without regard to its conflict of law provisions.
    4. Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
    5. Relationship of the Parties. TOSS and Client are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.
    6. Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.
    7. Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the Party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the Party set forth on the applicable Sales Order. Either Party may change its address by giving written notice of such change to the other Party.
    8. Publicity. Client hereby grants TOSS a non-exclusive license solely during the term of this Agreement to list Client’s name and display Client’s logo in the Client section of TOSS’s website and to use Client’s name and logo in TOSS’s client lists but only to the extent that other Clients of TOSS are also listed on such list. Any other use by TOSS of Client’s name, logo or trademark requires Client’s prior written consent.
    9. No Third Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.
    10. Counterpart and Facsimile Execution. This Agreement may be executed in counterparts and delivered by facsimile, each of which when so executed and delivered (including delivery by facsimile) shall be deemed an original, and all of which together shall constitute one and the same agreement.
    11. Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.

Exhibit A
DEFINITIONS

Affiliates means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.

Confidential Information has the meaning ascribed to it in Section 4.1.

Content means text, images, documents, materials, photos, audio, video, and all other forms of data or communication.

Client means the client identified on the Sales Order.

Client Applications means all software applications which Client directs that TOSS host and make available to Client in connection with the Services.

Client Content means all Content made available by Client or its Users to TOSS or otherwise provided by Client or its Users in connection with the Services.

Documentation means the documentation for the Subscription Service generally supplied by TOSS to assist its Clients in the use of the Subscription Service, including user and system administrator guides and manuals and other written materials.

Losses has the meaning ascribed to it in Section 9.1.

Party and collectively Parties means TOSS and Client.

Professional Services mean those installation, set-up, integration, configuration, consulting, custom analytics and/or training services, if and as specified on Sales Order, to be provided by TOSS.

Representatives has the meaning ascribed to it in Section 4.1.

Sales Order means each TOSS ordering document signed by duly authorized representatives of both Parties which references this Agreement, identifies the specific Subscription Service and any Professional Services ordered by Client from TOSS, sets forth the prices for the Subscription Service and any Professional Services and associated statements of work and contains other applicable terms and conditions.

Services mean the Subscription Service and any Professional Services provided by TOSS pursuant to Section 2 hereof.

Subscription Service means TOSS’s proprietary subscription-based hosted online solution set forth and described on the applicable Sales Order. Subscription Service includes services provided by TOSS in connection with Client’s access to TOSS’s online solution or platform.

Users mean individuals who are authorized by Client to use the Services, and, with respect to the Subscription Service, who have been supplied passwords by Client (or by TOSS at Client’s request). Users consist of any employee of Client or its Affiliates and any independent contractor of Client or its Affiliates.

TOSS means TOSS Corporation.

TOSS Content means all Content made available by TOSS to Client in connection with Client’s use of the Services.

Work Product means any work product, deliverables, programs, interfaces, modifications, configurations, reports, analyses or documentation developed by TOSS on behalf of Client and delivered to Client in the performance of any Professional Services.

Exhibit B
SUBSCRIPTION SERVICE – ADDITIONAL TERMS

  1. Subscription Service. Subject to the terms and conditions of these Terms of Use and the Agreement, TOSS will provide Client with access to the Subscription Service during the term set forth on the applicable Sales Order. DSL, cable or another high speed Internet connection is required for proper access to the Subscription Service. Client is responsible for procuring and maintaining the network connections that connect the Client network to the Subscription Service. TOSS assumes no responsibility for the reliability or performance of any connections as described in this Section. Client shall not attempt to access any other of TOSS’s systems, programs or data that are not made available for public use in connection with the Subscription Service. In connection with its use of the Subscription Service, Client shall be entitled to access and use only those modules and software applications of the Subscription Service that are expressly listed on a Sales Order.
  2. License Grant. Subject to the terms and conditions of the Agreement, and in consideration for the payment of fees set forth on each respective Sales Order for the Subscription Service, TOSS hereby grants to Client a non-exclusive, non-transferable license to access the Subscription Service solely for Client’s internal business purposes and solely for the specific service offering (as indicated on the applicable Sales Order). This license is restricted to use by Client and its Users and does not include the right to use the Subscription Service on behalf of any third party or the right to permit any non-User to access or use the Subscription Service. Client also agrees to be bound by any further restrictions set forth on the Sales Order. All rights not expressly granted to Client are reserved by TOSS and its licensors. There are no implied rights.
  3. Affiliates. Client may make the Subscription Service available to its Affiliates provided that all licensing restrictions are complied with in each instance by each such Affiliate and that Client is liable for any breach of the terms and conditions of this Agreement by any of its Affiliates. Any license restrictions set forth on a Sales Order shall be deemed to apply to Client and its Affiliates in the aggregate.
  4. Restrictions. Client is responsible for all activities conducted under its User logins and for its Users’ compliance with these Terms of Use and the Agreement. Unauthorized use, resale or commercial exploitation of the Subscription Service in any way is expressly prohibited. Without TOSS’s express prior written consent in each instance, Client shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Subscription Service or access the Subscription Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Service. Except as expressly permitted in these Terms of Use, Client shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license, the Subscription Service to any third-party. Client shall not use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Subscription Service. Client shall take all measures necessary to ensure compliance by all of its Users authorized to access the Subscription Service pursuant to Section 2 above with all terms and conditions of these Terms of Use and the Agreement. Client shall be liable for any breach of these Terms of Use or the Agreement by any of its Users. In addition to TOSS’s other remedies hereunder, TOSS reserves the right upon notice to Client to terminate any User’s right to access the Subscription Service if such User has violated any of the restrictions contained in these Terms of Use or the Agreement.
  5. Handling of Client Content Upon Termination. Client agrees that following termination of Client’s account and/or use of the Subscription Service, TOSS may immediately deactivate Client’s account. Client further agrees that TOSS shall not be liable to Client nor to any third party for any termination of Client access to the Subscription Service or deletion of Client Content, provided that TOSS is in compliance with the terms of this Section.
  6. Users: Passwords, Access and Notification. Client shall authorize access to and assign unique passwords in line with system security configuration to the number of Users purchased by Client on the Sales Order. User logins are for designated Users and cannot be shared or used by more than one User, but any User login may be reassigned to another User as needed. Client will be responsible for the confidentiality and use of User’s passwords. Client agrees to immediately notify TOSS if Client becomes aware of any loss or theft or unauthorized use of any of Client’s passwords.
  7. Modifications to Subscription Service. TOSS may make modifications to the Subscription Service or particular components of the Subscription Service from time to time provided that such modifications do not materially degrade any functionality or features of the Subscription Service and TOSS will use commercially reasonable efforts to notify Client of any material modifications.
  8. Suspension for Ongoing Harm. Client agrees that TOSS may with reasonably contemporaneous notice (which may be made by email or telephone) to Client suspend Client’s access to the Subscription Service if TOSS reasonably concludes that Client’s Subscription Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Client’s Subscription Service is causing immediate, material and ongoing harm to TOSS or others. In the extraordinary event that TOSS suspends Client’s access to the Subscription Service, TOSS will use commercially reasonable efforts to limit the suspension to the offending portion of the Subscription Service and resolve the issues causing the suspension of Subscription Service. Client agrees that TOSS shall not be liable to Client nor to any third party for any suspension of the Subscription Service under such circumstances as described in this Section.
  9. Client Support and Training. For the duration of the term of any active Sales Order, and unless otherwise specified in a Sales Order, Technical Support will be available from 8:00 am to 5 pm Monday to Friday (Eastern Standard Time), excluding Company observed holidays. Training will be provided to all approved Users under terms specified in a Sales Order.

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