1. DEFINITIONS
(a) “Default” means either party (i) becomes the subject of a voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors or (ii) is subject to a petition in bankruptcy that is dismissed for lack of assets, or (iii) materially breaches this Agreement and such material breach is incapable of cure or is not cured within thirty (30) days of non-breaching party providing notice of default. In particular, Subscriber would materially breaches the Agreement, and coac may terminate the Agreement according to point (iii) above, if invoiced charges owed by Subscriber are in part or in full thirty (30) or more days overdue, coac has issued a payment notice and Subscriber has not fully paid the charges within another thirty (30) days after the payment notice.
(b) “Disbursement” means any expenditures made by coac that are not Subscription Fees or Service Fees and will be billed to Subscriber as an additional charge. coac will obtain the prior consent of Subscriber before incurring any Disbursement in an amount greater than one hundred Euros (€100).
(c) “Kickoff Call Date” means the date of the first cross-organizational meeting between coac and Subscriber in which the parties outline the project scope and assign roles and responsibilities.
(d) “Order” means a purchase commitment mutually agreed upon between coac and Subscriber subject to the terms and conditions of this Agreement.
(e) “User” means a respondent participating in any research, survey, study or any other means or form of questionnaire administered through the Solution.
(f) “Product Safety Data” means all data stored in SAP EH&S or found on a safety data sheet and does not exclude aggregated, anonymized data.
(g) “Proprietary Information” (i) for coac, means the Solution and related documentation, and all current and future product and pricing information, business practices, maintenance procedures, services and support, method, strategies, plans and information identified or reasonably identifiable as confidential and proprietary and (ii) for Subscriber, means any Source System Data, Supporting Information and information identified or reasonably identifiable as confidential and proprietary, and (iii) excludes information which: (a) becomes publically available through no act or failure of the receiving party, (b) was or is rightfully acquired prior to receipt from the disclosing party, (c) becomes independently available to the receiving party without breach of this Agreement as evidenced by relevant business records, or (d) the receiving party is lawfully required to disclose to any governmental agency or is otherwise required to disclose by law, provided however that before making such disclosure, the receiving party will give the disclosing party adequate opportunity to interpose an objection and/or take action to assure confidential handling of such information.
(h) “Service(s)” means any professional services described in the Order.
(i) “Service Fees” means the agreed upon Service fees in an Order.
(j) “Solution” means the technology platform and services offered, and owned or licensed by coac, including all standard upgrades and updates thereto that coac generally implements for all subscribers, but excludes any Services and custom product enhancements and offerings that are not part of a standard release and that coac markets as an additional charge.
(k) “Subscription” means a time-based, non-exclusive, nontransferable right to access the Solution online in exchange for payment of the Subscription Fees and in accordance with this Agreement and the Order.
(l) “Subscription Fees” means the agreed upon Subscription fees in an Order.
(m) “Subscription Term” commences on the Kickoff Call Date and may be terminated (i) by either party providing six (6) months prior written notice of termination or (ii) upon Default.
(n) “Supporting Information” means all copy, graphic images, registered company logos, names and trademarks supplied by Subscriber and required for the operation of the Portal.
2. SUBSCRIPTION AND GRANT OF RIGHT TO USE
Subject to the terms and conditions of this Agreement, coac hereby grants Subscriber a right to access and use the Solution as set forth in the Order for the Subscription Term. Except only for the limited right to use granted in the preceding sentence, coac reserves title, ownership and all rights and interests, including intellectual property rights and trade secrets in the Solution. Subscriber will not directly or indirectly resell or grant access to the Solution and will not attempt to access, download, copy, decompile, reverse engineer, modify, or derive source code or other elements of the Solution, including any software, nor prepare translations or derivative works based upon, distribute, subscribe, rent, lease, sell or otherwise commercially exploit the Solution. Subject to the terms of this Agreement, Subscriber may allow its third party contractors to access the Solution solely for the benefit of Subscriber; provided, however, Subscriber remains responsible for any breach of this Agreement. Any other use of the Solution by any other entity is forbidden and a violation of this Agreement including use of the Solution by any of Subscriber’s corporate affiliates or subsidiaries. Subscriber will not tamper with the security of the Solution or attempt to probe, scan or test for vulnerabilities in the Solution, or breach the security measures in the Solution without proper written authorization from coac.
3. PROVISION OF SERVICES
coac will provide the Services as set forth in the Order and in accordance with Section 6 of the Agreement (including the Annexes) for the Subscription Term, provided Subscriber has paid and continues to pay the Service Fees. For the avoidance of doubt, the Services to be provided by coac do not include an obligation of coac to ensure that the Solution is compatible with Subscriber’s computer systems or any Internet technology. Certain minimum system requirements are required to use and access the Solution, and such minimum system requirements are available through coac’s online support and help pages of the Solution. Furthermore, the Services to be provided by coac do not include an obligation to ensure the minimum system requirements at Subscriber's computer systems. Subscriber and the Participant, as the case may be, are responsible to ensure their computer systems meet the minimum system requirements. The Services to be provided by coac do also not include an obligation of coac to ensure the functioning of the Internet. Subscriber is responsible to ensure that any relevant person will agree to participate in the activities conducted by Subscriber using the Solution, or that any Participant will maintain the confidentiality of any information provided to such person. coac is not responsible for the veracity of Participant Data. coac shall not in any way be responsible for failures, errors, and malfunctions to the extent caused by (a) Subscriber’s misuse or faulty operation of the Solution; (b) Subscriber’s non-compliance with the AUP; (c) Subscriber’s use of the Solution in combination with software or equipment not expressly approved by coac; or (d) the failure of Subscriber’s internal systems to meet coac’s minimum specifications in effect at the time of occurrence. coac’s ability to provide the Services is dependent upon the cooperation of and assistance from Subscriber. Additional services requested by Subscriber beyond the Services described in the Order may be provided by coac, at coac’s then-prevailing rates. The Services do not include any legal advice from coac. Furthermore, coac does not draft any legal documents, including but not limited to, any privacy policy, terms of use and sweepstakes or incentives rules and regulations for any clients, and any samples of documents that coac may provide or refer to are purely for exemplary and illustrative purposes. Legal compliance and drafting of any legal documents shall be the sole responsibility of Subscriber.
4. FEES AND PAYMENT
(a) Fees. Subscriber will pay all Subscription Fees, Service Fees, Disbursements and any other fees (collectively, “Fees”) specified in the Order. Except as otherwise set out herein or in an Order (i) Fees are based upon Subscription and Services purchased and not actual usage and (ii) quantities purchased cannot be decreased during the Subscription Term without the mutual consent of the parties.
(b) Invoicing and Payment. coac will charge the customer the fees monthly starting from the Kickoff Call date with retroactive effect. Invoiced charges are due net 30 days from receipt of the invoice. Subscriber is responsible for providing complete and accurate billing and contact information to coac and notifying coac of any changes to such information. If any invoiced amount is not received by coac by the due date, without limiting coac’s rights or remedies, those charges may accrue late interest at the rate of 8 percentage points over the base rate of the outstanding balance per year. If any amount owing by Subscriber is thirty (30) or more days overdue, coac may, without limiting its other rights and remedies, suspend all services to Subscriber until such amounts are paid in full.(c) Taxes. 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”). Subscriber is responsible for paying and reimbursing coac for all Taxes associated with the Fees, except taxes on coac’s income. If coac has the legal obligation to pay or collect Taxes for which Subscriber is responsible, coac will invoice Subscriber and Subscriber will pay that amount unless Subscriber provides coac with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, coac is solely responsible for taxes assessable against coac based on its income, property and employees. If Subscriber believes it is obligated to withhold for taxes or charges in Subscriber’s jurisdiction, Subscriber shall comply and remit such taxes, provide coac with evidence of withholding and gross up payments to insure that coac receives the full amounts invoiced to Subscriber; in that case, coac shall work with Subscriber in good faith to help recoup withheld amounts and pass on any recouped amounts beyond amounts actually invoiced to Subscriber.
5. PRICE ADJUSTMENTS
Fees under any Order are subject to periodic price adjustments, but not within one year of the Kickoff Call Date. Such price adjustments shall not occur more frequently than once every calendar year and shall take immediate effect following the provision of ninety (90) days prior written notice of the adjustment, except that any Services for which coac has provided a custom quote which shall be completed at the rates in effect at the time Subscriber requested the Services up to the expiration date of the custom quote. To the extent that Subscriber does not agree with the price adjustment, Subscriber may terminate the relevant Order within thirty (30) days following receipt of the written notice of the adjustment.
6. SERVICE LEVEL AGREEMENT, TECHNICAL SUPPORT AND ACCEPTABLE USE POLICY
The Service Level Agreement for the Solution is attached as Annex 1. Technical Support for the Solution is specified in Annex 2. The Acceptable Use Policy for the Solution is set out in Annex 3. Subscriber shall designate a primary support contact (“Designated Support Contact”) who will act as the conduit for all requests from Subscriber to coac relating to matters of use of and troubleshooting with respect to the Solution. Before assuming responsibilities, the Designated Support Contact shall complete training in the use of the Solution as prescribed by coac.
7. Collection and Protection of Personal Information
(a) Subscriber as data controller is responsible for compliance with all data privacy, data protection and data security laws applicable to Subscriber. If and to the extent required by law, as determined by Subscriber, Subscriber shall obtain the prior consent of each Participant to the collection, processing, use and disclosure of the Participant Data in compliance with all applicable laws in the jurisdiction of Subscriber and/or the Participants.
(b) The relevant obligations under applicable data privacy, data protection and data security laws of the parties with respect to personal data of Subscriber to which coac may have access to are more closely described in Annex 4, Data Processing Agreement.
(c) Customer will not upload into the Solution or otherwise submit or make accessible to coac any financial account identifiers (e.g. credit card numbers or bank account numbers) or “sensitive personal data” (as defined by applicable data protection laws). The same applies to other types of data that are subject to specific or elevated data protection requirements or special professional obligations (e.g., duty of confidentiality), unless to the extent that coac has expressly agreed in the relevant Order that it can comply with such requirements. Should Customer contravene its obligations under this section 7d, then Customer shall indemnify and hold harmless coac and its affiliates, subsidiaries, licensors, agents, directors and employees from and against any loss, damage and expenses incurred as a result thereof (including, without limitation, fines levied by competent data protection authorities and damages payable to data subjects).
8. INTELLECTUAL PROPERTY RIGHTS
The Solution and all related intellectual property rights are the exclusive property of coac. All right, title and interest in and to the Solution, any modifications, improvements, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, trademarks and all intellectual property rights in the Solution remain exclusively with coac, including any modifications or improvements made thereto at the suggestion of, or with input from, Subscriber. All rights not granted to Subscriber in this Agreement are reserved to coac. No ownership of the Solution passes to Subscriber. coac may make changes to the Solution which do not materially impact the functionality or use of the Solution at any time without notice. coac may make changes to the Solution which may have a material impact on the functionality or the use of the Solution only with prior notice. To the extent that Subscriber does not agree with the change, Subscriber may terminate the relevant Order within thirty (30) days following receipt of notice of the change. Except as otherwise expressly provided, coac grants no express or implied right under coac patents, copyrights, trademarks, or other intellectual property rights.
9. CONFIDENTIALITY
Each party will maintain the confidentiality of, and will not disclose or use any Proprietary Information of the other, without the prior express written consent of the party to whom the Proprietary Information belongs (the “Owner”), except as permitted by this Agreement. Each party agrees that it:(a) will limit access to the Proprietary Information of the Owner only to those of its employees, consultants or agents who require access to the Proprietary Information for contract performance; and(b) will ensure that those persons are bound by confidentiality obligations to the Owner no less strict than those set out in this Agreement.
10. WARRANTIES RELATING TO PROPRIETARY INFORMATION AND INTELLECTUAL PROPERTY
(a) Subscriber Warranty. Subscriber warrants that any Proprietary Information provided pursuant to this Agreement does not infringe, violate or misappropriate the intellectual property rights of any third parties.
(b) coac Warranty. coac warrants that the Solution does not infringe, violate or misappropriate the intellectual property rights of any third parties.
10. Warranty Rights in case of a Defect
(a) In case coac does not provide the Services as described in this Agreement, Subscriber shall have the Warranty Rights as further specified in Annex 1.
(b) The liability of coac for defects that existed at the time when the Agreement was concluded ("pre-contractual defects" or "anfängliche Mängel") regardless of fault pursuant to Section 536(a) 1st para., 1st sentence, Alt. 1 German Civil Code is excluded.
11. INDEMNIFICATION
(a) coac Indemnification. coac will defend Subscriber against any claim, demand, suit or proceeding made or brought against Subscriber by a third party alleging that the Subscription to the Solution in accordance with this Agreement infringes, violates or misappropriates such third party’s intellectual property rights (a “Claim Against Subscriber”), and will indemnify Subscriber from any damages, attorney fees and costs finally awarded against Subscriber as a result of, or for amounts paid by Subscriber under a court-approved settlement of, a Claim Against Subscriber, provided Subscriber (i) promptly gives coac written notice of the Claim Against Subscriber, (ii) gives coac sole control of the defense and settlement of the Claim Against Subscriber (except that coac may not settle any Claim Against Subscriber unless it unconditionally releases Subscriber of all liability), and (iii) gives coac all reasonable assistance, at coac expense. If coac receives information about an infringement, violation or misappropriation claim related to the Solution Subscription, coac may in its sole discretion and at no cost to Subscriber (i) modify the Solution so that it no longer infringes, violates or misappropriates third party intellectual property rights, (ii) obtain a license for Subscriber’s continued use of the Solution in accordance with this Agreement, or (iii) terminate Subscription upon thirty (30) days’ written notice and refund Subscriber any prepaid fees covering the remainder of the Subscription Term. The above defense and indemnification obligations do not apply to the extent a Claim Against Subscriber arises from Subscriber’s breach of this Agreement.
(b) Subscriber Indemnification. Subscriber will defend coac against any claim, demand, suit or proceeding made or brought against coac by a third party resulting from (i) the use of any coac service or product by Subscriber in violation of this Agreement which was culpably caused by Subscriber; (ii) the use of any material supplied by Subscriber to coac, including Supporting Information, that infringes on the proprietary rights of a third party, or constitutes a copyright infringement, which was culpably caused by Subscriber; and (iii) any violation of any law culpably caused by Subscriber and relating to defamation or the right to privacy, arising out of or relating to any use of the Solution (a “Claim Against coac”), and will indemnify coac from any damages, attorney fees and costs finally awarded against coac as a result of, or for any amounts paid by coac under a court-approved settlement of, a Claim Against coac, provided coac (i) promptly gives Subscriber written notice of the Claim Against coac, (ii) gives Subscriber sole control of the defense and settlement of the Claim Against coac (except that Subscriber may not settle any Claim Against coac unless it unconditionally releases coac of all liability), and (iii) gives Subscriber all reasonable assistance, at Subscriber expense.
12. LIMITATION OF LIABILITY
(a) coac's liability for damages caused by slight negligence, irrespective of its le-gal ground, shall be limited as follows:(i) coac shall be liable up to the amount of the foreseeable damages typical for this type of contract due to a breach of material contractual obligations;(ii) coac shall not be liable due to a slightly negligent breach of any other duty of care applicable.
(b) The aforesaid limitations of liability shall not apply to any mandatory statutory liability, in particular to liability under the German Product Liability Act (Produkthaftungsgesetz), and liability for culpably caused injuries of life, body or health. In addition, such limitations of liability shall not apply if and to the extent coac has assumed a specific guarantee.
(c) The parties agree that the foreseeable damages typical for this type of contract under sub-section (a) (i) above shall be limited to the yearly Fees actually paid by Subscriber in the contract year in which the event giving raise to the damages occurred.
(d) Sub-sections (a) and (b) shall apply accordingly to coac' liability for futile expenses (vergebliche Aufwendungen).
(e) Subscriber shall be obliged to take adequate measures to avert and reduce damages.
13. TERM AND TERMINATION
The Agreement will be in effect from the Effective Date and shall remain in full force until the expiry of the Subscription Term (“Termination”). Upon Termination:(a) the Subscription will immediately cease and each of the parties will return to the other or destroy all Proprietary Information belonging to such other party;(b) all Fees will be payable in full up to the effective date of Termination; and (c) Subscriber will be refunded any pre-paid unused Fees for any calendar month remaining in the Term after the effective date of Termination (excludes any partial months).All Subscriber Proprietary Information collected and stored through the Solution will be available to Subscriber for export or download for a period of thirty (30) days after effective date of Termination. After such thirty (30) day period, coac will have no obligation to maintain or provide Subscriber Proprietary Information, and will thereafter delete or destroy all copies of Subscriber Proprietary Information on coac systems or otherwise in coac’s possession or control.
14. SUBCONTRACTING
(a) Subject to any express restrictions elsewhere in this Agreement, the Provider may subcontract any of its obligations under this Agreement [, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question].
(b) The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
(c) Notwithstanding the provisions of this Clause 21 but subject to any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract [to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform].
15. Audit Rights of Service Provider
Service Provider shall have no right to conduct an on-premises audit of Subscriber’s compliance with the use of the Services. coac is entitled to collect an examination of the use of the services via the collection of metrics, e.g. the number of uses, data volume, computing power. If the actual metric exceeds the allowable metric, the subscriber must, at the sole option of the subscriber, within thirty (30) business days:
(a) reduce actual use to conform to the permitted metric, in which case Service Provider shall not be entitled to additional service charges; or
(b) purchase the appropriate adjustment at the rate set forth in Appendix A to conform to the permitted metric.
16. INTERNAL HOSTING
(a) In case the service is hosted on infrastructure of the subscriber or on infrastructure rented by the subscriber, the subscriber also takes over the responsibility of securing the protecting the infrastructure in order to the local compliance guidelines.
(b) In case the service is hosted on infrastructure of the subscriber or on infrastructure rented by the subscriber, the subscriber has to make sure that coac is always able to access the environment for maintenance and monitoring.
17. GENERAL
(a) Supporting Information and coac Link. Subscriber will obtain all the necessary prior permissions and authorizations for use of Supporting Information and will provide evidence of such permissions and authorizations to coac.
(b) Force Majeure. Neither party shall be held responsible for any delay or failure in performance under this Agreement to the extent such delay or failure is caused by fire, flood, strike, civil, governmental or military authority, act of God, inability to obtain delivery of parts, supplies, labour conditions, earthquakes, acts of terrorism or war, Internet or telecommunications failure or any other cause beyond its control and without the fault or negligence of the delayed or nonperforming party. In the event that a force majeure event affecting a party continues for a period of longer than thirty (30) days, either party shall be entitled to terminate this Agreement as of the date specified in written notice to the other party to that effect.
(c) Entire Agreement and Order of Precedence. This Agreement is the entire agreement between coac and Subscriber regarding the Subscription, Solution and Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement (2) an Order, and (3) any other documentation.
(d) Assignment. Neither party may assign this Agreement to a third party without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including any Order), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
(e) Governing Law. This Agreement and any disputes arising out of or relating to this Agreement shall be governed by the laws of Germany.
(f) Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
(g) Notice. The parties agree that notices under this Agreement will be in writing and be delivered by personal delivery, email or by overnight or express courier service, addressed as set out below or in such other manner as each party may advise the other in accordance with this Section.
This Master Subscription Agreement