ClearPoint Master Subscription Agreement
License Grant & Restrictions
Grant of License: During your subscription period, Ascendant grants you a worldwide, non-exclusive, non-transferable right to use the Service. This usage is subject to the terms and conditions outlined in this Agreement.
Service Quality: Ascendant represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Ascendant help documentation under normal use and circumstances.
Competitive Use: You may not access the Service if you are a direct competitor of Ascendant, except with Ascendant's prior written consent.
Benchmarking and Monitoring: In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Restrictions: You shall not:
License, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way.
Modify or make derivative works based upon the Service or the Content.
Create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device.
Reverse engineer or access the Service in order to:
Build a competitive product or service
Build a product using similar ideas, features, functions or graphics of the Service
Copy any ideas, features, functions or graphics of the Service.
You may use the Service only for your internal business purposes and shall not:
Send spam or otherwise duplicative or unsolicited messages in violation of applicable laws.
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
Send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs
Interfere with or disrupt the integrity or performance of the Service or the data contained therein
Attempt to gain unauthorized access to the Service or its related systems or networks
Term and Renewal
The Initial Term of your subscription shall be as provided in your Order Form. Upon the expiration of the Initial Term, this Agreement shall automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at Ascendant's then current fees, terms, and conditions.
Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms set forth in your Order Form. Payments must be made annually in advance unless otherwise mutually agreed in writing. Unless otherwise expressly provided herein, all payment obligations are noncancelable, and all amounts paid are nonrefundable.
Ascendant's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Ascendant's income. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data.
You shall:
Notify Ascendant immediately of any unauthorized use of any password or account or any other known or suspected breach of security
Report to Ascendant immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users
Not impersonate another Ascendant user or provide false identity information to gain access to or use the Service.
Account Information and Data
Ascendant does not own any data, information, or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not Ascendant, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Ascendant shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any Customer Data.
Ascendant reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination, your right to access or use Customer Data immediately ceases, and Ascendant shall have no obligation to maintain or forward any Customer Data.
Intellectual Property Ownership
Ascendant alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Ascendant Technology, the Content and the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Ascendant Technology or the Intellectual Property Rights owned by Ascendant. The Ascendant name, the Ascendant logo, and the product names associated with the Service are trademarks of Ascendant or third parties, and no right or license is granted to use them.
Termination and Suspension
Either party may terminate this Agreement, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least ninety (90) days prior to the date of the invoice for the following term.
Additionally, Ascendant reserves the right to terminate or suspend your access to the Service at any time if:
You fail to make any payment when due
You breach any of your obligations under the Agreement
Such termination or suspension shall not affect your payment obligations, and you shall continue to accrue fees during any period of suspension. Any past due amounts shall be subject to interest at the rate of 1.5% per month, or the maximum permitted by law, whichever is less, plus all expenses of collection. Ascendant (or its authorized Reseller) reserves the right to impose a reasonable reconnection fee in the event you are suspended and thereafter request access to the Service.
Privacy & Security; Disclosure
Ascendant's privacy and security policies may be viewed at https://www.clearpointstrategy.com. Ascendant reserves the right to modify its privacy and security policies in its reasonable discretion from time to time.
Mutual Indemnification
You shall indemnify and hold Ascendant, its licensors, its authorized Resellers, and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with:
A claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party
A claim, which if true, would constitute a violation by you of your representations and warranties
A claim arising from the breach by you or your Users of this Agreement, provided in any such case that Ascendant
Gives written notice of the claim promptly to you
Gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Ascendant of all liability and such settlement does not affect Ascendant's business or Service)
Provides to you all available information and assistance
Has not compromised or settled such claim.
Ascendant shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with:
A claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party
A claim, which if true, would constitute a violation by Ascendant of its representations or warranties
A claim arising from breach of this Agreement by Ascendant; provided that you
Promptly give written notice of the claim to Ascendant
Give Ascendant sole control of the defense and settlement of the claim (provided that Ascendant may not settle or defend any claim unless it unconditionally releases you of all liability)
Provide to Ascendant all available information and assistance; and
Have not compromised or settled such claim.
Ascendant shall have no indemnification obligation, and you shall indemnify Ascendant pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware, or business process(s).
Disclaimer of Warranties and Limitation of Liability
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, ASCENDANT AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. ASCENDANT AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ASCENDANT AND ITS LICENSORS.IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Notice
Ascendant may give notice by means of electronic mail to your e-mail address on record in Ascendant's account information or by written communication sent by nationally recognized overnight delivery service or certified mail, return receipt requested, to your address on record in Ascendant's account information.
You may give notice to Ascendant (such notice shall be deemed given when received by Ascendant) at any time by any of the following: letter sent by confirmed facsimile to Ascendant at the following fax number: (617) 848-2940; letter delivered by nationally recognized overnight delivery service or certified mail, return receipt requested, to Ascendant at the following addresses: Ascendant Strategy Management Group, 75 Arlington Street, 5th Floor, Boston, MA 02116, addressed to the attention of: Chief Financial Officer.
General
This Agreement shall be governed by Massachusetts law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Boston, MA. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Ascendant as a result of this agreement or use of the Service.
The failure of Ascendant to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Ascendant in writing. This Agreement comprises the entire agreement between you and Ascendant and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
Definitions
As used in this Agreement and in any Order Forms now or hereafter associated herewith:
Agreement means this End User License Agreement, any Order Forms, and any materials available on the Ascendant website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Ascendant from time to time in its sole discretion.
Content means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service.
Customer Data means any data, information or material provided or submitted by you to the Service in the course of using the Service.
Effective Date means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date you begin using the Service.
Initial Term means the contract term, beginning on the contract start date and ending on the contract end date, specified on the applicable Order Form.
Intellectual Property Rights means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service 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.
License Administrator(s) means those Users designated by you who are authorized to purchase licenses and to create User accounts and otherwise administer your use of the Service.
License Term(s) means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s).
Order Form(s) means the form evidencing the initial subscription for the Service and any subsequent order forms, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, 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 (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail).
Ascendant means collectively Ascendant Strategy Management Group, LLC, a Massachusetts corporation, having its principal place of business at 75 Arlington Street, 5th Floor, Boston, MA 02116.
Ascendant Technology means all of Ascendant'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 Ascendant in providing the Service.
Service(s) means the specific edition of Ascendant's online customer relationship management, billing, data analysis, or other corporate ERP services identified during the ordering process, developed, operated, and maintained by Ascendant, accessible via http://www.AscendantSMG.com or another designated web site or IP address, or ancillary online or offline products and services provided to you by Ascendant, to which you are being granted access under this Agreement, including the Ascendant Technology and the Content.
User(s) means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by Ascendant at your request).