SUBSCRIPTION AGREEMENT

 

SECTION 1.  DEFINITIONS

 

1. “Affiliates” mean, with respect to any Party, (a) those entities controlled by, in control of, or under common control with such Party.For the purposes of this definition, “control” by ownership of securities means ownership or control, direct or indirect, of more than fifty percent (50%) of the voting capital or equity participation of an entity, or (b) any other entity that the Parties mutually agree to treat as an Affiliate of such Party due to the effective control of the activities of such entity regardless of the percentage of ownership.

 

1. “” means an employee or independent contractor of Customer who is authorized by Customer to use the PtoP System.

 

1. “Customer Data” means all data either provided to PtoP by Customer or entered on its behalf by Authorized Users through its use of the PtoP System.

 

1. “” means any and all information of any form obtained by the Party receiving the information (“Receiving Party”) or its employees or agents from the other Party (“Disclosing Party”) either prior to the Effective Date or in the performance of this Agreement, excluding information that (i) is or becomes (other than by disclosure by Receiving Party) publicly known; (ii) is a publicly available document; (iii) is rightfully received from a third party with the legal right to possess and disclose such information to the Receiving Party without accompanying markings or disclosure restrictions; (iv) is independently developed by employees of the Receiving Party who have not had access to such Confidential Information; (v) is already known by the Receiving Party as evidenced by documentation bearing a date prior to the date of disclosure; or (vi) is approved for release in writing by an authorized representative of the Disclosing Party.This Agreement shall be deemed Confidential Information.

 

1. “” means all standard materials supplied by PtoP that describe the functionality and operation of the PtoP System.

 

1. “” means the last date of signature by the Parties to this Agreement.

 

1. “” means product prototypes, drawings, plans, designs, specifications, inventions, patents and patent applications, know-how, software code, processes and written documentation, whether or not patentable; works of authorship, whether or not copyrightable; and trademarks, trade names, trade dress and trade secrets, registered and unregistered designs including mask works, copyrights, and moral rights of any kind whatsoever and all forms of protection afforded by law to inventions, models, designs or technical information, and applications therefore or which otherwise arises or is enforceable under the laws of any jurisdictions or under any treaties.

 

1. “” means an order form signed by both Parties that references this Agreement and specifies the PtoP System and/or Professional Services to be purchased by Customer and includes other business terms, as applicable.Multiple Order Forms may be in effect at any given time.

 

1. “Professional Services”  means professional services such as implementation, consulting, or training services provided by PtoP as agreed to in an Order Form attached to this Agreement.

 

1. “” means the proprietary PtoP internet-based software services that allows Customer to manage alliance relationships, as more fully described in an Order Form.

 

SECTION 2.  SERVICES

 

1. Use of and Access to PtoP System.  Subject to the terms and conditions of this Agreement, PtoP hereby grants to Customer a limited, non-exclusive, revocable, non-transferable, non-sublicensable license during the Term for its Authorized Users to access and use the PtoP System and the Documentation for Customer’s internal business purposes and as otherwise set forth in the Order Form.  Any rights not expressly granted herein are expressly reserved.

 

1. Restrictions on Use

 

1. Customer shall not (and may not permit any third party to):(a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the PtoP System or any portion thereof; (b) modify or make derivative works based upon the PtoP System; (c) import or export the PtoP System or any portion thereof in violation of United States or other applicable import or export laws; (d) reverse engineer, decompile, disassemble the PtoP System or any portion thereof (e) delete any copyright, trademark, patent or other notice of proprietary rights of PtoP or its licensors as they appear anywhere within the PtoP System or documents generated through its use; (f) assist any other party in developing or creating any computer programs which are derived from or based upon the PtoP System or any of its codes, features, functions, algorithms, structures or sequences, without the prior written consent of PtoP; or (g) use the PtoP System except as expressly permitted in the Documentation and under this Agreement.

 

1. Customer shall not use the PtoP System to (a) submit data with viruses, worms, Trojan horses, and other malicious code; (b) interfere with or impede the functioning of PtoP’s computer servers; (c) commit network abuse or engage in any activities that compromise the security or functionality of the PtoP System or PtoP’s servers or networks or (d) violate any other applicable law or regulation.

 

1. Customer’s unauthorized use of the PtoP System or failure to comply with the provisions of this Section 2.2 may result in immediate suspension of access to the PtoP System.

 

1. Professional Services.  Professional Services may be provided by PtoP pursuant to either an Order Form executed by the Parties.  Any executed Order Forms shall be incorporated by reference into this Agreement.  Any deliverables required under an Order ("Deliverables") must be clearly identified as a "deliverable" therein.  Changes to an Order, which may include changes to the scope or nature of Professional Services to be rendered thereunder, may be implemented through a written change order that is signed by an authorized representative of each Party.  Change orders may result in an adjustment to the applicable fees and/or delivery schedule.

 

SECTION 3.  OWNERSHIP

 

PtoP and its licensors retain sole and exclusive right, title and interest in and to the PtoP System, all copies, modifications and derivative works thereof; all PtoP trademarks, names, logos; and all Documentation, including all rights to patent, copyright, trade secret and other proprietary or Intellectual Property Rights.  Except as expressly stated in an Order, PtoP shall retain all rights and ownership of all Deliverables resulting from any Order.  PtoP reserves all rights, including those not expressly granted in this Agreement.

 

SECTION 4. FEES AND PAYMENTS

 

1. Payment Terms.  Customer shall pay to PtoP all fees in U.S. dollars, as specified in any Order Form attached to this Agreement (the “Fees”).  PtoP will submit invoices to Customer in electronic format, and Customer will pay all undisputed amounts on such invoices within thirty (30) days after receipt.  Except as otherwise set forth herein, all payments are non-refundable.  All Fees charged under this Agreement are exclusive of taxes, duties or similar governmental assessments including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”) and Customer is responsible for paying all Taxes associated with its purchases hereunder.

 

1. .  If set forth in an Order Form, Customer shall pay for all reasonable costs and expenses (including travel and out-of-pocket expenses) incurred by PtoP related to its performance of this Agreement.

 

1. Late Charges.  If Customer fails to pay undisputed invoices by the applicable due date, without limiting any other rights and remedies that may then be available to PtoP, PtoP will have the right to assess late charges in an amount equal to the lesser of one and a half percent (1.5%) per month or the maximum amount allowed under applicable law.

 

SECTION 5.  CONFIDENTIALITY

 

1. . Each Receiving Party acknowledges that it and its employees or agents may, in connection with this Agreement, be exposed to or acquire Confidential Information of the Disclosing Party or its Affiliates or their vendors or clients. Receiving Party agrees, during the term of this Agreement and for a period of five years (or such longer period as is required by applicable law) from termination of the Agreement thereafter to hold such Confidential Information in strict confidence and not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give or disclose such Confidential Information to third parties or to use such Confidential Information for any purposes whatsoever other than the provision of services hereunder.  Each Receiving Party agrees to limit access to those of its employees or agents who need such access for purposes consistent with this Agreement and/or an applicable Order Form who are bound by confidentiality obligations to the Receiving Party at least as stringent as those contained herein. If required by law, the Receiving Party may disclose Confidential Information of the Disclosing Party, but will give adequate prior notice of such disclosure to the Disclosing Party to permit the Disclosing Party to intervene and to request protective orders or other confidential treatment therefor.

 

1. Return of Information. Unless required by law or as set forth in this Agreement, upon termination or expiration of this Agreement or at Disclosing Party’s request, Receiving Party will return to Disclosing Party all documents and other materials in Receiving Party’s possession or under Receiving Party’s control that contain or relate to the Confidential Information, or if requested by Disclosing Party to certify in a written letter that such documents were destroyed. Notwithstanding the foregoing, Receiving Party may retain the Confidential Information in accordance with any pre-existing document retention policy for archival purposes and, to the extent any Confidential Information remains on a Party’s information systems, the Party shall limit use and disclosure of such Confidential Information only as permitted by this Agreement.

 

1. .  Money damages will not be an adequate remedy if this Section 5 is breached and, therefore, either Party may, in addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety. 

 

SECTION 6.  TERM AND TERMINATION

 

1. Term of Agreement. This Agreement shall commence on the Effective Date and remain in effect for the initial term identified in the Order Form (“Initial Term”) unless earlier terminated pursuant to this Agreement.   Following the Initial Term, this Agreement will renew automatically for additional renewal periods equal to the Initial Term (each, a “Renewal Term”) at the then-current Fees (including any Fee increases as set forth in the Order Form), unless either Party provides written notice of non-renewal to the other at least ninety (90) days prior to the end of the Initial Term or any then-current Renewal Term, as applicable.   The Initial Term and any Renewal Term shall together be deemed the “Term.”

 

1. . Either Party shall have the right to terminate this Agreement upon written notice to the other Party if (a) the other Party materially breaches any term or condition of this Agreement, provided such breach is not cured by the breaching Party within thirty (30) days following receipt of written notice of such breach; or (b) the other Party terminates or suspends its business activities without a successor, becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to the control of a trustee, receiver or similar authority; or becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.

 

1. Rights and Obligations on Expiration or Termination. In the event of expiration or termination of this Agreement for any reason in accordance with the terms of this Agreement, Customer shall cease to use of the PtoP System, and shall return or destroy all PtoP Confidential Information. Upon termination of the Agreement, PtoP shall have no further obligation to provide services to Customer and the Parties agree that any Fees owed by either Party through the date of termination shall be promptly paid.

 

SECTION 7.  INDEMNIFICATION

 

1. Indemnification by PtoP. PtoP shall indemnify, defend, and hold harmless Customer, its Affiliates, and their respective directors, officers, employees, agents, representatives, and successors from and against any damages, costs and expenses (including reasonable attorneys’ fees) to the extent based on a third party claim that Customer's use of the PtoP System within the scope allowed under this Agreement constitutes a misappropriation of such third party's United States trade secret or directly infringes such third party's Intellectual Property Rights (“Intellectual Property Claim”). If an Intellectual Property Claim is made or if PtoP reasonably believes that such a claim will be made, at its sole option and expense, PtoP shall:  (i) procure for Customer the right to continue to use the PtoP System that is subject to the claim; (ii) modify or replace the PtoP System or affected part thereof while maintaining substantially equivalent functionality; or (iii) terminate this Agreement and refund to Customer any pre-paid fees for the infringing service.

 

1. Excluded Claims. PtoP shall have no obligations under Section 7.1 to the extent any Intellectual Property Claim is based upon or arises out of:  (i) the use of the PtoP System in combination with any software or service other than the software licensed from or recommended by PtoP to Customer (where there would be no claim, but for such combination); (ii) customization services performed by PtoP based upon Customer’s specifications, including those based on confidential information belonging to a third party;  (iii) modifications or configurations made to the PtoP System or the operation thereof by anyone other than PtoP including, without limitation, modifications or configurations made as a result of the PtoP System's customizable features; or (iv) Customer’s use of any version or release of the PtoP System other than the current unaltered version or release if such infringement would have been avoided by the use of a current unaltered release of the PtoP Software (collectively, the "Excluded Claims").  No costs or expenses shall be incurred on account of PtoP without the prior written consent of PtoP. Sections 7.1 and 7.2 set forth PtoP’s entire obligation and liability, and Customer's sole and exclusive remedy, with regard to any claims of infringement, misappropriation or violation of third party Intellectual Property Rights.

 

1. Indemnification by Customer. Customer shall indemnify, defend, and hold harmless PtoP, its Affiliates, and their respective directors, officers, employees, agents, representatives, successors and permitted assigns from and against any damages finally awarded against them by a court of competent jurisdiction or amounts agreed to by Customer in connection with any settlement, in connection with any third party claim:  (a) based upon or arising out of any of the Excluded Claims;  (b) that Customer’s provision of or access to Customer Data to PtoP under this Agreement violates any third party Intellectual Property Right or any applicable laws or regulations; or (c) related to any penalty, interest, additional tax, or other liability and expenses that may be levied, assessed or asserted as a result of the failure of Customer, for any reason, to timely file any information or return or pay any Taxes required by law with respect to this Agreement.

 

1. Third Party Claims. If a claim by a third party is made against an indemnified Party and if the indemnified Party intends to seek indemnification with respect thereto under this Section 7, the indemnified Party shall promptly notify the indemnifying Party of such claim; provided, however, that the failure to give timely notice shall not affect the rights of the indemnified Party so long as such failure to give timely notice does not materially prejudice the indemnifying Party’s ability to defend such claim.  The indemnifying Party shall have control of the defense of any such action and shall have full authority to enter into a binding settlement or compromise; provided, that the indemnifying Party shall not enter into any settlement or compromise without the indemnified Party’s consent, which consent shall not be unreasonably withheld, and in any event shall not be withheld if (i) such settlement includes an unconditional written release by the claimant or plaintiff of the indemnified Party and (ii) the full and sole relief provided is monetary damages that are paid in full by the indemnifying Party.  If the indemnifying Party assumes the defense of such claim, the indemnifying Party shall not be responsible for any legal or other expenses subsequently incurred by the indemnified Party in connection with the defense thereof.  The indemnified Party may participate, at its own cost and expense, in the defense of any such claim.

 

 

SECTION 8.  WARRANTIES; DISCLAIMER OF WARRANTIES

 

1. Professional Services Warranty. All Professional Services will be performed in a timely, professional and workmanlike manner in accordance with generally accepted industry practices and standards. If a claim under this warranty is made, PtoP shall either, at its option,  re-perform the applicable Professional Services at no additional cost to Customer or refund the fees paid to PtoP for such non-conforming Professional Services.  This Section sets forth PtoP’s sole and exclusive liability and obligations and Customer's sole and exclusive remedy for any breach of the Professional Services warranty set forth herein.

 

1. Other Warranties.PtoP represents to Customer that it has the lawful authority to enter into and perform its obligations under this Agreement; and PtoP represents to Customer that, as of the Effective Date PtoP either owns, or has the right to license to Customer, the PtoP System (if PtoP breaches this warranty, Customer's sole and exclusive remedy shall be the rights set forth in Section 7.1).

 

1. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 8, PTOP AND ITS AFFILIATES, SUBCONTRACTORS AND THIRD PARTY LICENSORS MAKE NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND PTOP AND ITS AFFIIATES, SUBCONTRACTORS AND THIRD PARTY LICENSORS SPECIFICALLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINEMENT. WITHOUT LIMITING PTOP’S OBLIGATIONS HEREIN, PTOP DOES NOT GUARANTEE THAT CUSTOMER'S USE OF THE PTOP SYSTEM WILL BE UNINTERRUPTED OR BE ERROR FREE OR SECURE OR THAT CUSTOMER WILL ACQUIRE OR ACHIEVE ANY RETURN OF INVESTMENT OF ANY KIND WHATSORVER. CUSTOMER UNDERSTANDS AND AGREES THAT PTOP IS NOT RESPONSIBLE FOR THE OUTCOME OR SUCCESS OF ANY OF CUSTOMER’S ALLIANCE RELATIONSHIPS AND THAT THE PTOP SYSTEM IS AN INFORMATION TOOL ONLY. 

 

 

SECTION 9.  LIMITATIONS ON LIABILITY

 

NEITHER PARTY NOR ITS SUPPLIERS WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND OR NATURE INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION OR LOSS OF DATA, GOODWILL, LOSS OF PROFITS OR REVENUES, OR BUSINESS OPPORTUNITY, OR ANY OTHER INDIRECT DAMAGES ARISING OUT OF OR IN ANY MANNER RELATING TO THIS AGREEMENT, OR (B) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO PTOP UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEEDING THE CLAIM.  NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS SET FORTH ABOVE SHALL NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH UNDER SECTION 7, EITHER PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY, CUSTOMER’S VIOLATIONS OF PTOP’S INTELLECTUAL PROPERTY RIGHTS AND/OR CUSTOMER’S FAILURE TO COMPLY WITH THE LICENSE TERMS SET FORTH IN SECTION 2, OR CUSTOMER’S FAILURE TO PAY THE FEES DUE UNDER THIS AGREEMENT.

 

SECTION 10.  MISCELLANEOUS

 

1. .  The Parties intend to create an independent contractor relationship, and nothing contained in any Agreement shall be construed to make either PtoP or Customer partners, principals, agents or employees of the other. 

 

Governing Law.  This Agreement shall be governed by, and interpreted and construed in accordance with the laws of the State of Vermont. The parties expressly exclude application of the Uniform Computer Information Transactions Act (“UCITA”), in any form. 

 

1. Complying with Laws. PtoP and Customer shall be solely responsible for complying with all applicable laws and regulations regarding its performance under this Agreement. Notwithstanding the above, a Party’s failure to comply with applicable law shall be considered a breach of this Agreement only to the extent that such failure materially and adversely affects the other Party, or such Party’s ability to perform its obligations in accordance with the terms of this Agreement.

 

1. .  No Party may assign or otherwise transfer its rights and obligations under this Agreement, without each other Party’s prior written consent which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the above, PtoP may assign or transfer this Agreement in connection with a merger, consolidation, assignment, sale or other disposition of substantially all of its assets or business (a “Change in Control”) without Customer’s prior written consent. 

 

1. .  Notice permitted or required to be given under this Agreement shall be deemed sufficient if given in writing by commercial delivery service or by registered or certified mail, postage prepaid, return receipt requested, addressed to the respective addresses of the Parties set forth in this Agreement to the representatives identified in the Order Form.  Notices so given shall be effective upon the earlier of: (i) receipt by the Party to which notice is given; (ii) on the fourth business day following the date such notice was deposited in the mail; or (iii) on the second business day following the date such notice was delivered to a recognized commercial overnight delivery service. 

 

1. .  This Agreement shall not be deemed or construed to be modified, amended, rescinded, cancelled or waived, in whole or in part, other than by written agreement signed by the Parties hereto.

 

1. .  In the event that any of the terms of this Agreement are in conflict with any law or otherwise unenforceable, such terms shall be deemed stricken from this Agreement, but such invalidity or unenforceability shall not invalidate any of the other terms of this Agreement.

 

1. .  This Agreement may be executed in two or more counterparts, and each such counterpart shall be deemed an original hereof.

 

1. . PtoP’s and Customer’s rights and obligations pursuant to Sections 1 (“Definitions”), 3 (“Ownership”), 4 (“Fees and Payment”), 5 (“Confidentiality”), 6.3 (“Rights and Obligations on Expiration or Termination”), 7 (“Indemnification”), 8.3 (“Disclaimers”), 9 (“Limitation of Liability”), and 10 (“Miscellaneous”) shall survive the expiration or termination of this Agreement as well as any other provision which, by its terms, is intended to survive.

 

1. .  No failure by either Party to assert any right hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right. 

 

1. Entire Agreement.  This Agreement, including any exhibits attached hereto or agreements incorporated herein by reference, supersede all previous and contemporaneous oral negotiations, commitments, writing and understanding between the Parties concerning the matters in this Agreement.