Master Subscription Agreement

This Subscription Agreement (“Agreement”) governs your use of and access to the Services provided by ClientPoint (“Company”, “We”, “Us”, “Our” or “ClientPoint”).  Please read these terms of use carefully as they contain important information regarding your legal rights, remedies, and obligations. By using the ClientPoint Services, you accept and agree to be bound and abide by the terms and conditions set forth in this Agreement.

BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT;OR,FOR FREE SERVICES, BY USING SUCH SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

This Agreement was last updated on August 17, 2018. It is effective between You and Us as of the date of Your accepting this Agreement.

1. Definitions.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Content” means any material, such as audio files, video files, electronic documents, or images, that you upload and import into the Services or Software in connection with your use of the Services.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

“Free Services” means Services that ClientPoint makes available to You free of charge. Free Services exclude Services offered as a free trial and Purchased Services.

“Purchased Services” means Services that You or Your Affiliate purchase under an Order Form, as distinguished from Free Services or those provided pursuant to a free trial.

“Services” means the products and services that are ordered by You under an Order Form or provided to You free of charge (as applicable) or under a free trial, and made available online by Us.

“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, We at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.

“You”, “Your”, or “Subscriber” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have entered into Order Forms.

“Your Data” or “Subscriber Data” means electronic data and information submitted by or for You to the Services.

2. FREE TRIAL AND FREE SERVICES

2.1 Free Trial.

If You register on Our website for a free trial, We will make some Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period, or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s), or (c) termination by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES, APPLICABLE UPGRADED SERVICES, OR EXPORT YOUR DATA, BEFORE THE END OF THE TRIAL PERIOD. IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MAY NOT BE ABLE TO TRANSFER YOUR DATA.

THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND WE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD.

2.2 Free Services.

We may make Free Services available to You. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this Section 2.2 (Free Services) and any other portion of this Agreement, this section shall control. Please note that Free Services are provided to you without charge up to certain limits as described in the Documentation. Usage over these limits requires your purchase of additional resources or services. You agree that ClientPoint, in its sole discretion and for any or no reason, may terminate your access to the Free Services or any part thereof. You agree that any termination of your access to the Free Services may be without prior notice, and you agree that We will not be liable to you or any third party for such termination. You are solely responsible for exporting Your Data from the Free Services prior to termination of Your access to the Free Services for any reason, provided that if We terminate your account, except as required by law We will provide you a reasonable opportunity to retrieve Your Data.

THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND WE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE FREE SERVICES.

3. Limitations, Modifications and Obligations.

3.1 Limitations.

We will not be responsible or liable for any failure in the Services resulting from or attributable to (a) Your Systems, (b) network, telecommunications or other service or equipment, (c) Your, or third party’s products, services, negligence, acts or omissions, (d) any force majeure or cause beyond our reasonable control, (e) scheduled maintenance or (f) unauthorized access or breach by third parties. You are responsible for maintaining the confidentiality of Your account access password, and for all activities that occur under Your account.

3.2 Technology Limitations and Modifications.

We will make reasonable efforts to keep the Service operational. However, certain technical difficulties, maintenance, or updates may, from time to time, result in temporary interruptions. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions and features of the Service with or without notice. However, We do our best to notify You of any such interruptions.

3.3 Subscriber Obligation.

You are solely responsible for collecting, inputting and updating all Subscriber Data and Content. You are responsible and liable for the accuracy, completeness, quality, integrity, legality, reliability and appropriateness of all Your Data and Content and any third party claims regarding same.  You represent and warrant that the Subscriber Data and Content shall not (a) infringe any copyright or trademark, (b) misappropriate any trade secret, (c) infringe any U.S. patent, (d) be deceptive, defamatory, obscene, pornographic or unlawful, (e) contain any viruses, worms, or other malicious computer programming codes intended to damage a user’s system or data or (f) otherwise violate the rights of a third party.

4. Use of Services and Content.

4.1 Intellectual Property

We respect intellectual property rights, and expect You to do the same. The Service and the content provided through the Service is Our property and protected by intellectual property rights (including but not limited to copyright) excluding the Content You created and own that You loaded into the system, and You do not have a right to use the Service (including but not limited to its content) in any manner not covered by the Agreement.  You retain all rights and ownership of your Content. We do not claim any ownership rights to your Content.

4.2 Restrictions on Use of Service.

You are responsible for all activity on Your account.  Please notify Customer Support immediately if You become aware of any unauthorized use of Your account. You may use the Service solely for Your own internal sales enablement needs. You shall not (a) display, reveal, sublicense or otherwise permit access to the Service, in any form, to any third party; (b) transfer Your rights or obligations under this Agreement; (c) modify, copy, or make derivative works of the Service; (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code or other trade secrets from the Service, or any component of the Service; (e) remove or alter any copyright notices, trademark notices, or other proprietary legends on the Service or on any materials produced by the Service; (f) create Internet links to or from the Service for others or frame or mirror any aspect of the Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes; (g) use the Service to transmit material containing software viruses or other harmful computer code, files, scripts, agents or programs; (h) interfere with or disrupt the integrity or performance of the Service or any data contained therein; (i) attempt to gain or grant to others unauthorized access to the Service; (j) rent, lease, or loan the Service or any portion thereof to any third party; or (k) use the Service to act as a service bureau, enter into a time sharing arrangement by which any third party may utilize the Service or enter into any other arrangement allowing an unauthorized party access to the Service; or (l) utilize the system to send unsolicited bulk email.  We may, at Our discretion and without limitation of other remedies, suspend Your access to the Service if You violate any of the foregoing restrictions. Any use of the Services in breach of this Agreement, or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.

4.3 Usage Limits.

Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms and Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage.

4.4 Storage.

Our services may provide storage of your content.  We may create reasonable limits on size, storage space, processing capacity, and other technical limits.  We may suspend the Services until You are within the limits associated with your account.

4.5 Conduct.

We have no obligation to monitor any user’s use of the Services, however We retain the right at all times to monitor, retain, and disclose any information as necessary to satisfy any applicable law, regulation, legal process, or governmental request.

4.6 Our Access to Your Content.

Where permitted by law, We will access Your content to (a) provide support (b) prevent, detect or address fraud, security, unlawful, or technical issues; and (c) enforce the Terms. Our automated systems may analyze Your Content to improve services.  We require certain licenses from You to operate and enable the Services. You grant us a nonexclusive, worldwide, royalty-free, sublicensable, and transferable license to use, reproduce, publicly display, distribute, modify, publicly perform, and translate the Content as needed in response to user driven actions (such as when You run an automation to customize Your Content or when You send a link to a prospect to view your Content online).  This license is only for the purpose of providing and improving the Services. You may revoke this license to Your Content at any time by removing Your Content from the Service. Some copies of the your Content may be retained in backups for a period of time.

4.7 Feedback.

We appreciate any ideas, suggestions, and proposals (“Feedback”).  If You submit feedback to Us You grant Us a non-exclusive, worldwide, royalty-free, sublicensable, and transferable license to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify and publicly perform the Feedback.

5. Fees and Payments.

5.1 Subscriptions.

Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing and are subject to a new subscription term.

5.2 Fees.

You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form,(i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.

5.3 Invoicing and Payment.

You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 6.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

5.4 Overdue Charges.

If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.3 (Invoicing and Payment).

5.5 Suspension of Service and Acceleration.

If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 8.2 (Notice to You) for billing notices, before suspending services to You. We shall have no liability to Subscriber or any third party for any damages relating to or arising from such suspension of Subscriber’s access to the Services. Subscriber will pay all reasonable collection costs (including reasonable attorneys’ fees).

5.6 Payment Disputes.

We will not exercise Our rights under Section 5.4 (Overdue Charges) or 5.5 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

5.7 Taxes.

Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 4.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

5.8 Future Functionality.

You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.

6. Term and Termination.

6.1 Term of Agreement.

This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.

6.2 Term of Purchased Subscriptions.

The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless We provide You notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

6.3 Termination.

A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach 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.

6.4 Refund or Payment upon Termination.

If this Agreement is terminated by You in accordance with Section 6.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 6.3 (Termination), You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

6.5 Your Data Portability.

Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Your Data.

7. Limitation of Liability.

7.1 Limitation of Liability.  

IN NO EVENT SHALL CLIENTPOINT BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE PAYMENTS MADE BY SUBSCRIBER TO CLIENTPOINT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST EVENT GIVING RISE TO SUCH LIABILITY, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

7.2 Consequential Damages.  

CLIENTPOINT SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE TO SUBSCRIBER FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS OR SERVICES, LOSS OF TECHNOLOGY, DATA, RIGHTS OR SERVICES, LOSS OF SUBSCRIBER DATA AND CONTENT OR OTHER INFORMATION, OR INTERRUPTION OR LOSS OF USE OF FUNCTIONALITY, DATA OR EQUIPMENT, EVEN IF CLIENTPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

7.3 Acknowledgement.  

THE PARTIES ACKNOWLEDGE THAT CLIENTPOINT HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.  THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE FEES PAYABLE BY SUBSCRIBER REFLECT THIS ALLOCATION OF RISK.

7.4 Availability.  

ClientPoint shall use commercially reasonable efforts to maintain the availability of the Services on a twenty-four (24) hour basis (excluding scheduled maintenance and downtime and failures beyond ClientPoint’s reasonable control).  NOTWITHSTANDING THE FOREGOING, CLIENTPOINT DOES NOT WARRANT THE AVAILABILITY OF THE SERVICE AND ALL PORTIONS OF THE SERVICE AND CLIENTPOINT SHALL NOT BE LIABLE FOR ANY FAILURE OF CLIENTPOINT OR CLIENTPOINT’S VENDORS WITH REGARD TO THE UNAVAILABILITY OF THE SERVICE DUE TO THE FAILURE OF SYSTEMS, EQUIPMENT, SERVICES, THIRD PARTY SOFTWARE, A DISRUPTION IN THE CONNECTION BETWEEN ANY SERVERS AND THE INTERNET, ANY SERVER OR TELECOMMUNICATIONS ANOMALIES OR ANY OTHER CAUSE OUTSIDE OF THE CONTROL OF CLIENTPOINT OR ITS VENDORS.

7.5 Indemnification.  

You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, loss, or damage, including reasonable attorneys’ fees, arising out of or related to your Content, your use of the Services, or your violation of the Terms.

7.6 Trade Control Laws.

The Services and your use of the Services, are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of the Services. You agree to comply with all the laws, restrictions, and regulations.

8 Miscellaneous.

8.1 Notice to ClientPoint. You may send notices to us at the following address: ClientPoint Incorporated, 6800 Embarcadero Lane, Carlsbad CA 92011, USA, Attention: General Counsel.

8.2 Notice to You. We may notify you by email, postal mail, postings within the Services, or other legally accepted means.

8.3 Headings. Headings used in these General Terms or Additional Terms are provided for convenience only and will not be used to construe meaning or intent.

8.4 Severability. If any provision of this agreement is held invalid or unenforceable for any reason, the agreement will continue in full force and effect.

8.5 No Waiver.  The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.

8.6 Dispute Resolution.  

Any dispute arising from or related to the enforcement or interpretation of this Agreement (including whether the dispute is arbitral) shall be governed by California law and shall be submitted to binding arbitration before one arbitrator at the San Diego Regional Office (in the City of San Diego) of the American Arbitration Association (“AAA”).  The Commercial Rules of the AAA in effect at the time shall apply. The prevailing party shall be entitled to recover reasonable attorneys’ fees and costs of arbitration. Any arbitration award may be entered in a court of competent jurisdiction

8.7. Enforceability.  

If any of the provisions of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted.

9. ENTIRE AGREEMENT.

Each party acknowledges that this Agreement, the Privacy Policy,  and any Order Forms or Statements of Work that may be separately entered into by the parties, constitute the complete and exclusive statement of the terms and conditions between the parties, which supersede and merge all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties.