Subscription Services Agreement

This agreement is between ERP Maestro, Inc. a Florida corporation (ERPM), and the entity agreeing to these terms (Customer). Contract begins at the time of Customer’s signature on Order Form related to this agreement and is effective as of that date (Effective Date). The agreement shall remain in effect for so long as active Services are being provided in accordance with a signed order entered into by the parties.

 

1. Software service.

This agreement provides Customer access and usage of an Internet based software service as specified on an order and as further outlined at: www.erpmaestro.com(Service)

 

2. USE OF SERVICE.

A. Customer Owned Data.

All data uploaded by Customer remains the sole property of Customer, as between ERPM and Customer (Customer Data). Customer grants ERPM the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Data as specified by the functionality within the Service.

B. Contractor and Affiliates Access and Usage.

Customer may allow its contractors and majority owned affiliates to access the Services in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors and such affiliates.

C. Customer Responsibilities.

Customer (i) must keep its passwords secure and confidential; (ii) is responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify ERPM promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s User Guide and applicable law.

D. ERPM Support.

ERPM must provide customer support for the Service under the terms of its Customer Support Policy (Support) which is located at www.erpmaestro.com/support, and is incorporated into this agreement for all purposes.

 

3. SERVICE LEVEL AGREEMENT and WARRANTY.

A. Warranty.

ERPM warrants to Customer: (i) that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given month as provided in the chart below (excludingscheduled outages, force majeure, and outages that result from any Customer technology issues); (ii) the functionality or features of the Service may change but will not materially decrease during a paid term; and (iii) that the Support may change but will not materially degrade during any paid term.

Availability Warranty                                                  Credit

99.5%                                               3% of monthly fee for each full hour of an outage

Maximum amount of the credit is 100% of the fee for such month.

B. Limited Remedy.

The Service may be interrupted or contain an error.  Customer’s exclusive remedy and ERPM’S sole obligation for its failure to meet the warranty in a(i) above will be for ERPM to provide a credit for the applicable month, as provided in the chart above (if this agreement is not renewed, then a refund), for the month; provided that Customer notifies ERPM of such breach within 30 days of the end of that month.

C. Disclaimer.

ERPM disclaims all other warranties, including, without limitation, the implied warranties of merchantability, title and fitness for a particular purpose.  While ERPM takes reasonable physical, technical and administrative measure to secure the Service, ERPM does not guaranty that the Service cannot be compromised.

 

4. Payment.

Customer must pay all fees as specified on the “Order Form”, but if not specified then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement. Payment terms shall start upon signature date on order form.

 

5. MUTUAL CONFIDENTIALITY.

A. Definition of Confidential Information.

Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). ERPM’s Confidential Information includes without limitation the Service, and Licensed Software and Documentation, (including without limitation the Service user interface design and layout, and pricing information).

B. Protection of Confidential Information.

The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

C. Exclusions.

Confidential Information excludesinformation that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information.  The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

 

6. ERPM PROPERTY.

A. Reservation of Rights.

The software, workflow processes, user interface, designs, know-how, Licensed Software and Documentation (defined below), and other technologies provided by ERPM as part of the Service are the proprietary property of ERPM and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with ERPM. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Software and Documentation. ERPM reserves all rights unless expressly granted in this agreement.

B. Restrictions.

Customer may not(i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service or the Software and Documentation; or (vi) access the Service or use the Software and Documentation to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.

C. Software and Documentation.

All software provided by ERPM as part of the Service, and the Service documentation, sample data, marketing materials, training material and other material provided through the Service or by ERPM (Software and Documentation) are licensed to Customer as follows: ERPM grants Customer a non-exclusive license during the term of this agreement, to use and copy such Software and Documentation, solely in connection with the Service.

 

7. TERM and Termination.

A. Term.

Contract begins at time of signatures. This agreement continues until all orders have terminated.

B. Mutual Termination for Material Breach.

If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.

C. Return of Customer Data.

  • Within 30-days after termination, upon request ERPM will make the Service available for Customer to export the data, as provided for in Section 2(a).
  • After such 30-day period, ERPM has no obligation to maintain the Customer Data and may destroy it.

D. Return or Destroy ERPM Property Upon Termination.

Upon termination of this agreement for any reason, Customer must pay ERPM for any unpaid amounts, and destroy or return all property of ERPM. Upon ERPM’s request, Customer will confirm in writing its compliance with this destruction or return requirement.

E. Suspension of Service for Violations of Law.

ERPM may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law. ERPM will attempt to contact Customer in advance.

 

8. LIABILITY LIMIT.

A. Exclusion of indirect Damages.

ERPM is not liable for any indirect, special, incidental or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of data, records or information; lost profits and any failure of delivery of the Service).

B. Total limit on Liability.

ERPM’s liability for all damages arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.

 

9. Indemnity.

A. Defense of Third Party Claims.

ERPM will defend or settle any third-party claim against Customer to the extent that such claim alleges that the ERPM technology used to provide the Service violates a copyright, patent, trademark or other intellectual property right, if Customer, promptly notifies ERPM of the claim in writing, cooperates with ERPM in the defense, and allows ERPM to solely control the defense or settlement of the claim.

Costs. ERPM will pay infringement claim defense costs incurred as part of its obligations above, and ERPM negotiated settlement amounts, and court awarded damages.

Process. If such a claim appears likely, then ERPM may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If ERPM determines that none of these are reasonably available, then ERPM may terminate the Service and refund any prepaid and unused fees.

Exclusions. ERPM has no obligation for any claim arising from:

  • ERPM’s compliance with Customer’s specifications;
  • A combination of the Service with other technology where the infringement would not occur but for the combination;
  • Use of Customer Data; or
  • Technology not provided by ERPM.
  • This section contains Customer’s exclusive remedies and ERPM’s sole liability for intellectual property infringement claims.

B. By Customer.

If a third-party claims against ERPM that any part of the Customer Data infringes or violates that party’s patent, copyright or other right, Customer will defend ERPM against that claim at Customer’s expense and pay all costs, damages, and attorney’s fees, that a court finally awards or that are included in a settlement approved by Customer, provided that ERPM: promptly notifies Customer in writing of the claim; and allows Customer to control, and cooperates with Customer in, the defense and any related settlement.

C. Sales Tax.

Buyer shall pay, and shall indemnify and hold Seller harmless on an after-tax basis against, all sales, use, transfer or similar taxes (and any fines, penalties, additions to tax or interest relating thereto), if any, imposed or assessed on or with respect to the terms of this agreement.

 

10. GOVERNING LAW AND FORUM.

 This agreement is governed by the laws of the State of Florida (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement.  Any suit or legal proceeding must be exclusively brought in the federal or state courts for Broward County, FL, and Customer submits to this personal jurisdiction and venue.  Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.

 

11. OTHER TERMS.

A. Entire Agreement and Changes.

This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter.  Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, and no waiver is effective unless the party waiving the right signs a waiver in writing.

B. No Assignment.

Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.

C. Independent Contractors.

The parties are independent contractors with respect to each other.

D. Enforceability and Force Majeure.

If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for force majeure events.

E. Money Damages Insufficient.

Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.

F. No Additional Terms.

ERPM rejects additional or conflicting terms of any Customer form-purchasing document.

G. Order of Precedence.

If there is an inconsistency between this agreement and an order, the order prevails.

H. Survival of Terms and no CISG.

Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive. The UN Convention on Contracts for the International Sale of Goods does not apply.