SharedGrowth, Inc. is a 501(c)(3) non-profit corporation. Our mission is to help successful companies engage their employees in meaningful community endeavors.
This Subscription Agreement ("Agreement") is entered into and effective as of _________________, 2014 ("Effective Date") by and between Shared Growth, Inc., a Pennsylvania corporation, having its principal place of business at 1016 North Arch Street, Allentown, PA 18104 ("Shared Growth, Inc.") and ___________________________, a _____________________ corporation, having its principal place of business at _____________________________________________________________ ("Customer").
The parties agree as follows:
"Customer Data" means all electronic data or information submitted by Customer to the Service
"Service" means the online, Web-based employee engagement application, provided by Shared Growth, Inc. (in part through a sublicense of Salesforce.com software and services), which can be accessed via www.appexchange.com or www.sharedgrowth.org
"User(s)" mean Customer's employees, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by Shared Growth, Inc. at Customer's request).
2.1 Provision of Service. Shared Growth, Inc. shall make the Service available to Customer pursuant to the terms and conditions set forth in this Agreement. In addition to the terms of this Agreement, Customer’s use of the Service shall be subject to the terms of Salesforce.com’s license, subscription and end-user agreements, which are available at www. salesforce.com/company/legal.
2.2 User(s). The subscription granted is for ____ User(s) for a period of one year from the Effective Date. Each User is a named individual or title position, although they can be reassigned from time to time to new Users replacing former Users who have terminated employment (or some other prior relationship with Customer), changed job status or function, or otherwise no longer will access the Service. If Customer needs to add Users, Customer may do so by submitting a written request. Any such additional User subscriptions shall be coterminous with the expiration of the then current subscription term; and pricing for the additional User subscriptions shall be the same as that for the pre-existing subscriptions, prorated for the remainder of the then current subscription term.
3. Use of the Service.
3.1 Shared Growth, Inc. Responsibilities. Shared Growth, Inc. shall: : (i) in addition to its confidentiality obligations under Section 6, not use, edit or disclose to any party other than Customer the Customer Data; (ii) provide reasonable telephone and online standard support to Customer's Users (either directly or thorough Salesforce.com in accordance with its terms), at no additional charge; and (iii) use commercially reasonable efforts to make the Service generally available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Shared Growth, Inc. shall give at least 4 hours notice and which Shared Growth, Inc. shall schedule to the extent reasonably practicable during the weekend hours; or (b) downtime caused by circumstances beyond Shared Growth, Inc.'s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems not involving Shared Growth, Inc. employees, computer or telecommunications failures or delays involving hardware or software not within Shared Growth, Inc.'s possession or reasonable control, and network intrusions or denial of service attacks.
3.2 Customer Responsibilities. Customer is responsible for all activities that occur under Customer's User accounts. Customer shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Shared Growth, Inc. promptly of any such unauthorized use; and (ii) comply with all applicable local, state, federal, and foreign laws in using the Service.
3.3 Use Guidelines. Customer shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iv) send or store material containing malicious or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
3.4 Third-Party Providers. Certain elements of the Services may be provided through third-party providers, including Salesforce.com and others whose identity Shared Growth, Inc. will disclose in writing to Customer. Shared Growth, Inc. does not warrant any such third-party providers or any of their products or services, and Customer shall rely strictly on the warranties of those third-party providers.
3.5 Customer Data. As between Shared Growth, Inc. and Customer, all Customer Data is owned exclusively by Customer. Customer Data shall be considered Confidential Information subject to the terms of this Agreement. Shared Growth, Inc. may access Customer Data, solely to respond to service or technical problems or at Customer's request or as otherwise permitted under this Agreement.
4. Fees & Payment.
4.1 User Fees. The fee for the fist year following the Effective Date shall be $4.99 per User per Month or $49.99 per User per Month, based on each User subscriptions purchased. Fees are based on the number of User subscriptions purchased, not the extent of actual usage. Fees are non-refundable, and the number of subscriptions purchased cannot be decreased during the subscription term. Because fees are based on monthly units, fees for User subscriptions purchased in the middle of a monthly period will be charged for that monthly period in full and going forward based on the number of monthly periods remaining in the subscription term.
4.2 Invoicing & Payment. The Fees for the Service for the initial term shall be paid upon signing of this Agreement, and subsequent renewal periods will be invoiced annually in advance. Fees are due net 30 days from the invoice date.
4.3 Overdue Payments. Any payment not received from Customer by the due date shall accrue late charges 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.
4.4 Suspension of Service. If Customer's account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), or Customer violates any other term of this Agreement, then in addition to any of its other rights or remedies, Shared Growth, Inc. reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full or defaults remedied.
4.5 Taxes. Shared Growth, Inc.'s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). Customer is responsible for paying all Taxes, excluding only taxes based on Shared Growth, Inc.'s income. If Shared Growth, Inc. has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Shared Growth, Inc. with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.6 Billing and Contact Information. Customer shall maintain complete and accurate billing and contact information on the Service at all times.
4.7 Reservation of Rights. Customer acknowledges that in providing the Service, Shared Growth, Inc. utilizes (i) the Shared Growth, Inc. and Salesforce.com names and logos, and other trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Shared Growth, Inc. Technology") and that the Shared Growth, Inc. Technology is covered by intellectual property rights owned or licensed by Shared Growth, Inc. (collectively, "Shared Growth, Inc. IP Rights"). The Shared Growth, Inc. Technology includes the application and customizations that Shared Growth, Inc. developed for Customer whether made at Customer’s direction or otherwise, and as between Customer and Shared Growth, Inc., Shared Growth, Inc. owns all rights to the Shared Growth, Inc. Technology except for the rights expressly granted in this Agreement. Except as expressly set forth in this Agreement, no license or other rights in or to the Shared Growth, Inc. Technology or Shared Growth, Inc. IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
4.8 License Grant. Shared Growth, Inc. grants Customer and its Users a non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicenseable right to access and use the Service in accordance with the terms of this Agreement.
4.9 Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Service or Shared Growth, Inc. Technology; (ii) create Internet "links" to or from the Service, or "frame" or "mirror" any content forming part of the Service, other than on Customers' own intranets or otherwise for its own internal business purposes; or (iii) disassemble, reverse engineer, or decompile the Service or Shared Growth, Inc. Technology, or access it in order to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service.
5.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), 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, including the terms and conditions of this Agreement, business and marketing plans, technology and technical information, Customer Data and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
5.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
5.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information.
5.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
5.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
6. Warranties & Disclaimers.
6.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Shared Growth, Inc. represents and warrants that (i) it owns or otherwise has sufficient rights to the Service and the Shared Growth, Inc. Technology to grant the rights and licenses granted herein; and (ii) the Service and Shared Growth, Inc. Technology do not infringe any intellectual property rights of any third party.
6.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SHARED GROWTH, INC. MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SHARED GROWTH, INC. HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7. Mutual Indemnification.
7.1 Indemnification by Shared Growth, Inc. Subject to this Agreement, Shared Growth, Inc. shall defend, indemnify and hold Customer harmless against any loss or damage (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of, or has otherwise harmed, a third party; provided, that Customer (a) promptly gives written notice of the Claim to Shared Growth, Inc.; (b) gives Shared Growth, Inc. sole control of the defense and settlement of the Claim (provided that Shared Growth, Inc. may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Shared Growth, Inc., at Shared Growth, Inc.'s cost, all reasonable assistance.
7.2 Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold Shared Growth, Inc. harmless against any loss or damage (including reasonable attorneys' fees) incurred in connection with Claims made or brought against Shared Growth, Inc. by a third party alleging that the Customer data infringes the intellectual property rights of, or has otherwise harmed, a third party; provided, that Shared Growth, Inc. (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Shared Growth, Inc. of all liability); and (c) provides to Customer, at Customer's cost, all reasonable assistance.
8. Limitation of Liability.
8.1 Limitation of Liability. IN NO EVENT SHALL SHARED GROWTH, INC.'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $100,000 OR THE AMOUNTS ACTUALLY PAID BY CUSTOMER HEREUNDER.
8.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
8.3 Limitation of Action. Except for actions for non-payment or breach of either party's intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than one (1) years after the cause of action has accrued.
9. Term & Termination.
9.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
9.2 Term of User Subscriptions. User subscriptions commence on the Effective Date and continue for one year from such date. User subscriptions shall automatically renew for additional periods of one (1) year at the list price in effect at the time of renewal unless Customer gives Shared Growth, Inc. notice of termination at least 30 days prior to the end of the relevant subscription term.
9.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, Shared Growth, Inc. shall refund Customer any prepaid fees for the remainder of the subscription term after the date of termination.
9.4 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Shared Growth, Inc. prior to the effective date of termination.
9.5 Return of Customer Data. Upon request by Customer within 30 days of the effective date of termination, Shared Growth, Inc. will make available to Customer for download a file of Customer Data (in the format that Shared Growth, Inc. customarily uses at such time or such other format as Customer may reasonably request. After such 30-day period, Shared Growth, Inc. shall have no obligation to maintain or provide any Customer Data.
10. General Provisions.
10.1 No Benefit to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons.
10.2 Notices. All notices under this Agreement shall be in writing and shall be delivered to the addresses set forth at the beginning of this Agreement evidenced by a delivery receipt, by facsimile or by email. Notice shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) 48 hours after sending by confirmed facsimile; or (iv) 48 hours after sending by email.
10.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
10.4 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.5 Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of Pennsylvania, without regard to its conflicts of laws provisions.
10.6 Venue. The state and federal courts located in Dauphin County, Pennsylvania shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise.
10.7 Export Control Laws. Each party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement.
10.8 Entire Agreement. This Agreement constitutes the entire agreement between the parties as to its subject matter, and supersedes all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted.
IN WITNESS WHEREOF, the parties have duly executed this Subscription Agreement as of the Effective Date:
Shared Growth, Inc.