SiteLog Master Subscription Agreement
Last Updated November 6, 2011
THIS SITELOG MASTER SUBSCRIPTION AGREEMENT (“Agreement”) is made and entered into as of the Effective Date (as defined below) by and between Wozia Unipessoal, Lda., with a place of business at Rua Dom Martim de Freitas, 83, 4560-828 Urrô - Penafiel, Portugal (“SiteLog”, “Wozia”, “Us”), and the company represented by the individual accepting this Agreement on the company’s behalf (“Company”, “You” or “Your”) (each, a “Party” and, collectively, the “Parties”). SiteLog provides customers access to a proprietary, business-integration, software-as-a-service known as the SiteLog, via the Internet on a subscription service basis. The Services (as defined below) enable Us to monitor pre-defined services by You on Your servers or website(s) via SiteLog’s platform.
SiteLog provides these Services to You subject to the terms and conditions of this Agreement. In order to use the Services, You must first agree to this Agreement by signing at the end of this Agreement. You may not use the Services if You do not accept this Agreement.
This Agreement governs Your trial and ongoing use of the Services. In addition, if You elect to subscribe to the Services by executing a separate Order Form, this Agreement will also govern such subscription and Your ongoing use of the Services.
This Agreement is a legally-binding agreement between You and Wozia, effective as of the Effective Date.
1. Definitions. Certain terms used in this Agreement are defined in this Section. Other terms are defined throughout this Agreement in the context in which they are used and shall have the meaning there indicated.
“Affiliate” means any Person which controls, is controlled by, or is under common control with a Party.
“Agreement” means collectively this Master Subscription Agreement, any Order Forms, whether written or submitted online via the Online Order Center, and any materials available on the SiteLog website specifically incorporated by reference herein, as such materials may be updated by SiteLog from time to time in its sole discretion.
“SiteLog Platform” means the web-based software platform developed, provided, and hosted by SiteLog, that enables You to manage services, servers and websites, and define which services to monitor by Us on Your servers/websites.
“SiteLog Materials” means all code, Documentation, marketing materials, product-related literature, promotional materials, training materials, and other materials, associated with SiteLog, SiteLog Platform and/or the SiteLog Technology.
“SiteLog Technology” means all of SiteLog’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to You by Wozia in providing the Services.
“Documentation” means the most current version of online documentation for SiteLog customarily made available by Wozia to You.
“Effective Date” means the date You accepted this Agreement.
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, Wozia marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Order Form(s)” means the form evidencing the initial subscription for the Services and any subsequent order forms submitted online or in written form, specifying, among other things, the Services contracted for, the applicable fees, and other charges as agreed to between the Parties, each such Order Form to be incorporated into and to become a part of this Agreement.
“Online Order Center” means SiteLog's online application that allows You to, among other things manage your services, servers and websites for Us to able to provide You the Services.
“Person” means a partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, or other entity.
“Services” means the SiteLog’s services provided to You.
“User(s)” means Your employees, representatives, consultants, contractors, or agents who are authorized to use the Services and have been supplied user identifications and passwords by You (or by Wozia at Your request).
“You” or “Your” means the company or other legal entity for which You are accepting this Agreement.
2. USE OF THE SERVICES.
2.1. Trial. SiteLog shall make the Services available to You on a trial basis until the earlier of (a) the thirtieth day after Your acceptance of this Agreement, or (b) the start date set forth in any Order Form (the “Trial Period”). 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. Notwithstanding anything to the contrary herein, Sections 2.6, 4, 5.1, 5.3, 5.4, 7, 9.1, and 9.2 do not apply during the Trial Period, and the Services are provided “as-is” and “as-available” without any warranties.
2.2. Purchased Services. Subject to the terms and conditions of this Agreement, SiteLog shall make the Services available to You on a subscription basis during the Term (as defined in the initial or any subsequent Order Form).
2.3. Access to the Services. Unless otherwise noted in an Order Form, You may use no more than the number of services specified during the online subscription process, or specified on an Order Form. You may use the output from the Services solely for Your internal business operations, provided such operations will not include service bureau use, outsourcing, renting, or time-sharing of the Services. You may copy and use on Your computer system any object code generated by the Services.
2.4. Restrictions. Your access to the Services is provided to You on the condition that You do not (and do not allow any third party to) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, or decompile the Services, any object code generated by the Services or any part thereof, or otherwise attempt to discover any source code, modify the Services in any manner or form, or use unauthorized or modified versions of the Services, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services. In addition, You may not access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Except as expressly provided in this Agreement, Your access to the Services does not convey any rights or ownership, either express or implied, in (a) the Services; (b) any source or object code generated by the Services; or (c) any Intellectual Property Rights in the Services, any code generated by the Services, or any SiteLog Materials. Any rights not expressly granted in this Agreement are expressly reserved by Wozia and its licensors.
2.5. Customer Data. You hereby grant to Wozia a worldwide, non-exclusive, limited, nontransferable right, during the Trial Period and/or the Term, to store, host, reproduce, and maintain Your data and information supplied by You (“Customer Data”) solely for purposes of making the Services available to You and Your Users.
2.6. Service Level and Support. SiteLog shall make the Services available to You and provide support, Jump Start services and/or other remote training (if indicated on Your Order Form) pursuant to this Agreement and the SiteLog Service Level Agreement (”SLA”), which is posted at www.siteloghq.com/terms-of-use and is hereby incorporated into this Agreement. The SLA may be amended from time to time by SiteLog, and any such amended version of the SLA shall be the operative SLA with respect to this Agreement from that point forward, or if you notify us in writing within 30 days of the amendment of your objection to the change, the amended terms shall take effect upon the next renewal date of your subscription. Any new features added by SiteLog that update, augment, or enhance the Services will also be subject to this Agreement.
2.7. Account, Passwords, and Security of Account Information. Upon completing the registration process for the Services, You shall receive one unique account ID and passwords for each user (the “Account Information”). The Account Information may be used only by Your Users. You shall maintain, and shall ensure that each of Your Users maintains, the confidentiality of the Account Information, and You shall be solely responsible for all activities that occur under Your Account Information. You shall notify us immediately of any unauthorized use or loss of any Account Information or any other breach of security with respect to Your or Your Users’ use of the Services. Account Information is subject to cancellation or suspension by Wozia at any time when Wozia may have a reasonable belief that such Account Information is being misused, used by an unauthorized user, or if You have materially breached this Agreement. The reissuance or reactivation of any Account Information shall be in Wozia’s sole but reasonable discretion.
2.8. Security. Wozia will use commercially available security software for authentication and encryption of Customer Data and will take such other security measures as may be required by regulatory authorities with jurisdiction over the Services. You acknowledge that transmission of data over the Internet may not be secure, even after such reasonable security measures have been taken, and You will hold Wozia harmless from the dissemination, misappropriation, loss or corruption of data caused by third parties.
3. TERM AND TERMINATION.
3.1. Term. This Agreement will commence on the Effective Date and continue for as long as set forth in any given Order Form (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive one (1) year periods (each, a “Renewal Term,” and with the Initial Term, collectively, the “Term”), unless either Party gives notice of its intention not to renew at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term. The renewal charge will be equal to the fee in effect during the prior term, unless Wozia has given You at least thirty (30) days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Wozia will charge Your credit card automatically or require receipt of approved purchase order information prior to the beginning of each Renewal Term. If You elect to use the Services for the Trial Period and do not purchase a subscription before the end of that Trial Period, this Agreement will terminate at the end of such Trial Period.
3.2. Termination for Cause. Either Party may terminate this Agreement if the other Party breaches any material provision of this Agreement and fails, within thirty (30) days after receipt of written notice of such breach, to either correct the breach or commence corrective action that is reasonably acceptable to the aggrieved Party.
3.3. Effect of Termination. Termination will have no effect on Customer’s obligation to pay for any Services rendered prior to termination. The terms of Sections 1, 3.3, 4.2, 4.3, 5, 7, 8, 9 and 10 shall survive any expiration or termination of this Agreement.
4. FINANCIAL TERMS.
4.1. Fees and Payment. You shall pay all fees or charges to Your account as specified on an Order Form, or as indicated in the online subscription process. Payments must be made monthly in advance. All payment obligations are non-cancelable and all amounts paid are non-refundable. You must provide SiteLog with Your valid credit card or approved purchase order information as a condition to signing up for the Services. All pricing terms are confidential, and You agree not to disclose them to any third party.
4.2. Taxes. Prices are exclusive of federal, state, excise, sales and use, or other similar tax and fees, which shall be separately stated on invoices. You are responsible for and shall pay these taxes and fees unless You present Wozia with a valid state and local exemption certificate. You are responsible for all other tax obligations arising from Your actions or actions of Users.
4.3. Non-Payment and Suspension. In addition to any of its other rights hereunder, SiteLog reserves the right to suspend or terminate this Agreement and Your access to the Services if Wozia encounters any problems charging Your credit card or processing any purchase order or if Wozia has reason to believe You or any of Your Users are in violation of section 2.4 or 10.11. SiteLog’s suspension or resumption of the Services will not limit or prevent SiteLog from pursuing all other remedies available to it.
4.4 Reconnection Fee and Customer Data. Wozia may impose a reconnection fee in the event Your account is suspended in accordance with this Agreement and You thereafter request access to the Services. You agree and acknowledge that SiteLog has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted in the event that Your account is suspended.
5. WARRANTIES AND WARRANTY DISCLAIMERS.
5.1. Warranties of Wozia. Wozia warrants to You that: (i) during the Term of this Agreement, the Services will materially conform with its documentation (available at www.siteloghq.com or any successor web site); and (ii) Wozia has the power and authority to grant You access to the Services.
5.2. Your Warranties. You warrant that (i) Your access to and use of the Services shall comply in all respects with this Agreement, and (ii) You are not a direct competitor of SiteLog.
5.3. Exceptions to Warranty. Wozia and its licensors do not warrant that the operation of the Services will be error-free. Wozia and its licensors will have no obligations to You under Section 5.1 if You: (a) do not properly maintain all associated equipment, software, Internet access, and environmental conditions in accordance with applicable specifications and industry standards; (b) introduce other equipment or software creating an adverse impact on the Services; (c) do not pay all amounts due under this Agreement; or (d) are in default of any material provision of this Agreement.
5.4. Disclaimers. EXCEPT AS SPECIFICALLY CONTAINED IN SECTION 5.1, YOU AGREE THAT THE SITELOG, THE SITELOG TECHNOLOGY, THE SERVICES, THE SITELOG MATERIALS, AND ANY OTHER MATERIALS PROVIDED BY SITELOG ARE PROVIDED “AS IS” AND “AS AVAILABLE.” SITELOG SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. SITELOG DOES NOT REPRESENT OR WARRANT THAT ACCESS TO THE SITELOG TECHNOLOGY OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, COMPLETE, ACCURATE OR FREE FROM ERRORS OR DEFECTS. CERTAIN SOFTWARE AND EQUIPMENT MAY NOT BE CAPABLE OF SUPPORTING CERTAIN FEATURES OF THE SITELOG TECHNOLOGY. YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED UPON ANY REPRESENTATIONS OR WARRANTIES MADE BY SITELOG OTHER THAN AS SPECIFICALLY SET FORTH HEREIN.
6. INTERNET DELAYS
THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SITELOG IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
7. REMEDY FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT.
If all or any part of the Services are, or in the opinion of SiteLog may become, the subject of any claim or suit for infringement of the Intellectual Property Rights of a third party, SiteLog may, but is not obligated to, exercise any of the following remedies, at its expense: (i) obtain for You the right to continue to use the Services; (ii) modify or replace the Services so they are non-infringing and in compliance with this Agreement; or (iii) terminate this Agreement and refund to You any fees paid for Services that had not been delivered at the time of termination. THIS SECTION 7, TOGETHER WITH SECTION 9, STATES YOUR SOLE AND EXCLUSIVE REMEDY, AND WOZIA’S SOLE AND EXCLUSIVE LIABILITY, REGARDING INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
8. LIMITATION OF LIABILITY.
8.1 No Indirect Damages. IN NO EVENT SHALL SITELOG BE LIABLE TO YOU, YOUR AFFILIATES, OR ANY THIRD PARTY FOR ANY LOST PROFITS OR LOST REVENUE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
8.2 Exclusive Remedies. THE PARTIES HAVE RELIED UPON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. THE REMEDIES PROVIDED TO YOU AND YOUR AFFILIATES IN THIS AGREEMENT ARE EXCLUSIVE.
8.2 Limitation of Liability. IN NO EVENT WILL SITELOG’S LIABILITY FOR DAMAGES OR ALLEGED DAMAGES UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EXCEED THE AMOUNT OF FEES PAID BY YOU TO WOZIA IN THE LAST (1) MONTH.
9.1. SiteLog’s Indemnification of You. Subject to Section 8, SiteLog shall indemnify, defend, and hold You harmless against any expense, judgment, or loss arising out of infringement by the Services of any third party’s Intellectual Property Rights recognized under Portugal law.
9.2. Exceptions to the SiteLog Indemnification Obligations. SiteLog shall not be obligated to indemnify You hereunder to the extent (i) You fail to give Wozia prompt notice of any claim pursuant to Section 9.1, appropriate authority to settle or defend the claim, or the information and assistance reasonably necessary to conduct the defense of the claim; or (ii) the claim arises from or is based upon use by You or any third party of (a) the Services in a manner for which they were not intended; or (b) any unauthorized enhancements, modifications, alterations, or implementations of the Services; or (iii) the claim arises from use of the Services in combination with unauthorized modules, apparatus, hardware, software, or services; or (iv) the claim arises from any use of the Services that violates this Agreement or any applicable law or regulation of any governmental authority or self-regulatory agency or authority; or (v) the claim arises from any use of the Services for which they were not designed.
9.3. Your Indemnification of SiteLog. You shall indemnify, defend, and hold SiteLog and Wozia harmless against any expense, judgment or loss arising out of (i) any gross negligence, reckless, or intentional acts or omissions, or fraud by You or Your agents; (ii) Your use, operation, or access to the Services; and (iii) any breach by You of Your representations, warranties, or covenants hereunder.
9.4. Procedures for Handling Indemnification Claims. If any claim or action is asserted that would entitle either Party to indemnification pursuant to Section 9.1 or Section 9.3 (a “Proceeding”), the Party who seeks indemnification will give written notice thereof to the other Party (the “Indemnitor”) promptly (and in any event within fifteen (15) calendar days after the service of the citation or summons); provided, however, that the failure of the Party seeking indemnification to give timely notice hereunder will not affect rights to indemnification hereunder, except to the extent that Indemnitor demonstrates actual damage caused by such failure. Indemnitor may elect to direct the defense or settlement of any such Proceeding by giving written notice to the Party seeking indemnification, which election will be effective immediately upon receipt by the Party seeking indemnification of such written notice of election. The Indemnitor will have the right to employ counsel reasonably acceptable to the Party seeking indemnification to defend any such Proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor will not settle, or consent to any entry of judgment in, any Proceeding without obtaining either: (i) an unconditional release of the Party seeking indemnification (and its Affiliates and each of their respective officers, directors, employees and agents) from all liability with respect to all claims underlying such Proceeding; or (ii) the prior written consent of the Party seeking indemnification. A Party seeking indemnification will not settle, or consent to any entry of judgment, in any Proceeding without obtaining the prior written consent of the Indemnitor. The parties will fully cooperate with each other in any such Proceeding and will make available to each other any books or records useful for the defense of any such Proceeding.
10.1. Independent Contractors. The Parties are independent contractors. Nothing contained in this Agreement will be construed or implied to create an agency, partnership or joint venture between the parties. At no time will either Party make commitments or incur any charges or expenses for or on behalf of the other Party without prior written consent.
10.2. Force Majeure. Neither Party will have any liability for delays or failures in the performance of this Agreement to the extent that such delay or failure is caused by any cause not within such Party’s direct control, such as fire, flood, acts of God, natural disaster, war, terrorism, Internet outages, power outages and the like, other than financial inability.
10.3. Notice. Wozia or SiteLog may give notice by means of electronic mail to Your e-mail address on record with SiteLog, or by written communication sent by first class mail or pre-paid post to Your address on record with SiteLog. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to SiteLog (such notice shall be deemed given when received by SiteLog) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Wozia at the following address Rua Dom Martim de Freitas, 83, 4560-828 Urrô - Penafiel, Portugal addressed to the attention of: Chief Financial Officer.
10.4. Governing Law / Jurisdiction. The laws of the Penafiel, Porto, Portugal, shall govern the interpretation and enforcement of this Agreement and any dispute arising out of or related to this Agreement, without giving effect to any conflict of laws principles that may cause the law of any other jurisdiction to apply. The parties irrevocably submit to the exclusive personal jurisdiction of the state or federal courts located in Penafiel, Porto, Portugal, and each party agrees to submit to the personal jurisdiction of the state and federal courts located within Penafiel, Porto, Portugal. Each Party hereby waives any jurisdictional, venue, or inconvenient forum objections to such courts.
10.5. Entire Agreement and Counterparts. This Agreement contains the entire agreement between the Parties with respect to the Services and supersedes all other oral or written representations, statements, or agreements with respect to such subject matter. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of this Agreement shall prevail.
10.6. Assignment. You may not assign or otherwise transfer this Agreement without the prior written consent of Wozia, which consent will not be unreasonably withheld or denied, and any attempt to assign any rights, duties or obligations which arise under this Agreement without such consent shall be null and void. However, You may, without Wozia’s consent, assign this Agreement to an Affiliate or to any Person or entity that is acquiring all or substantially all of Your assets or which is a successor by merger, consolidation, acquisition of stock or assets, or other business combination, other than by a direct competitor of SiteLog.
10.7. Amendment to the Agreement; Waiver. Except as this Agreement otherwise provides, no amendment to this Agreement shall be binding unless agreed to in a writing executed by Wozia and You, and no approval, consent, or waiver shall be enforceable unless signed by the granting Party. No document shall be deemed to amend this Agreement by implication.
10.8. Severability and Reformation. If any provision of this Agreement is held to be invalid or unenforceable by arbitration or a court of competent jurisdiction, then the remaining provisions of this Agreement will remain in full force and effect. Such invalid or unenforceable provision will be severed from this Agreement with the remaining terms of the Agreement to be automatically revised to best reflect the parties’ original intent.
10.9. Headings. The headings of the sections included in this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement.
10.10. Contract for Services. The parties intend this Agreement to be a contract for the provision of the Services and not a contract for the sale of goods. To the fullest extent permitted by law, the provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If You are located outside of the territory of Portugal, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
10.11. Compliance with Laws. You are responsible for all activity occurring under Your Account Information, and You will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Your use of the Services. Furthermore, You acknowledge that the SiteLog Technology and Services provided under this Agreement, which may include technology and encryption, are subject to the customs and export control laws and regulations of Portugal and may also be subject to the customs and export laws and regulations of the country in which the SiteLog Technology or Services are received. You agree to abide by those laws and regulations.
10.12. Bench Trial. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any dispute arising hereunder.
10.13. No Class Actions. NEITHER YOU NOR WOZIA OR SITELOG SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
10.14. Limitation Period. NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
10.15. Dispute Resolution. You and Wozia will attempt to resolve any dispute arising hereunder through face-to-face negotiation with persons fully authorized to resolve the dispute or through mediation utilizing a mediator agreed to by the parties, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a state or federal court in Penafiel, Porto, Portugal a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the dispute within 30 days of notice of the dispute to the other party, the parties shall be free to pursue all remedies available at law or in equity.