REVISED: NOVEMBER 15, 2016
This Subscription Agreement (the "Agreement") governs use of the System (as defined below) and any related services provided between Retrium, Inc. ("Retrium"), a Delaware corporation, having its principal place of business at 8705B Colesville Road, #219, Silver Spring, MD 20910 and you or the company which you represent and are authorized to bind ("Customer"). If you use the System (as defined below), or take any other affirmative action indicating your acceptable of this Agreement, then you have agreed to these terms. If you do not agree to this Agreement, then you are not authorized to use the System.
(a) Customer Data. "Customer Data" means any of Customer's information, documents, or electronic files that are provided to Retrium hereunder.
(b) Documentation. "Documentation" means any online or printed user manuals, functional specifications that are provided to Customer by Retrium, and any derivative works of the foregoing.
(c) Error. "Error" means any reproducible material failure of the System to function in accordance with its Documentation.
(d) Personal Information. "Personal Information" means information that may be used to readily identify or contact you as an individual person, such as: name, address, email address, or phone number. Personal Information does not include information that has been anonymized such that it does not allow for the ready identification of specific individuals.
(e) System. "System" means the software service for which Customer has paid, including any Updates relating thereto that may be provided hereunder or thereunder, and any derivative works of the foregoing.
(f) Support. "Support" means the ongoing services by Retrium to support the System as defined in Section 3 below.
(g) Update. "Update" means any patch, bug fix, release, version, modification or successor to the System.
(h) User. "User" means any individual to whom Customer has granted access to use the System on Customer's behalf, regardless of whether or not the User actually accesses the System, and regardless of whether or not the User has established a Retrium account.
(i) Effective Date. "Effective Date" is the date on which the Customer's subscription to the System starts. The beginning of the contract term.
(j) Edition. "Edition" means the named configuration of the System that has been licensed to the Customer. An Edition defines what features, limits, and usage restrictions are placed on the system licensed to the Customer. From time to time, new features will be introduced to the system, and those features will be restricted to specific Editions. New named Editions may also be introduced from time to time.
(a) Account Registration. Customer may need to register for a Retrium account in order to place orders or access the System. Any registration information that Customer provides to Retrium must be accurate, current, and complete. Customer must also keep this information accurate, current, and complete so that Retrium may send notices, statements, and other information by email or through Customer's account. An individual may only register for a single Retrium account and all Retrium accounts are granted to a single individual and may not be shared, without Retrium's prior express written permission.
(b) License. During the term and subject to the terms of this Agreement, Retrium hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the System for its business purposes. The license in the preceding sentence is limited to use by the number of Users for which Customer has paid. For clarity, the number of distinct individuals who access or use the System on Customer's behalf under said license must be less than or equal to the number of Users for which Customer has paid. Said license is non-transferable, except in the event of a voluntary transfer of substantially all assets by Customer to a transferee which executes Retrium's form of agreement agreeing to be bound all of the terms and conditions of this Agreement. All rights in and to the System not expressly granted herein are reserved to Retrium.
(c) License and Use Restrictions. Customer shall not, directly, indirectly, alone, or with another party, (i) copy, disassemble, reverse engineer, or decompile the System; (ii) modify, create derivative works based upon, or translate the System; (iii) transfer or otherwise grant any rights in the System in any form to any other party, nor shall Customer attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder.
(d) Customer Data. Customer owns all right, title and interest in the Customer Data. Customer hereby grants to Retrium, a non-exclusive, non-transferable, non-sublicensable right and license to use, copy, transmit, modify and display the Customer Data solely for purposes of Customer's use of the System. Retrium shall not use the Customer Data except as necessary to perform its obligations hereunder.
(e) No Sensitive Data. Customer acknowledges that the System is not intended for use with protected health information under HIPAA, credit card numbers, financial account numbers, or other similarly-sensitive Personal Information, and that Customer assumes all risk arising from use of any such sensitive information with the System, including the risk of any inadvertent disclosure or unauthorized access thereto. Customer acknowledges that Retrium is not acting as a Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that Retrium is not HIPAA compliant. "HIPAA" means the Health Insurance Portability and Accountability Act, as amended and supplemented. Notwithstanding any other provision to the contrary, Retrium has no liability under this Agreement for Sensitive Data.
(f) Security. Customer is solely responsible for maintaining the security of all user names and passwords granted to it, for the security of its information systems used to access the System, and for its Users' compliance with the terms of this Agreement. Retrium has the right at any time to terminate or suspend access to the System to Customer or any of its Users if Retrium reasonably believes that such termination or suspension is necessary to preserve the security, integrity, or accessibility of the System, or if use of the System by Customer or any of its Users is not expressly authorized by this Agreement. Throughout the term of this Agreement, Retrium will take commercially reasonable precautions to prevent the loss or alteration of Customer Data in Retrium's possession. Nevertheless, Customer understands that use of the System necessarily involves transmission of Customer Data over networks that are not owned, operated or controlled by Retrium, and Retrium is not responsible for any Customer Data lost, altered, intercepted or stored across such networks. Retrium cannot guarantee that its security procedures will be error-free, that transmissions of Customer Data will always be secure or that unauthorized third parties will never be able to defeat Retrium's security measures or those of Retrium's third party service providers.
(a) Services Generally. Subject to the terms of this agreement, and throughout the term of this Agreement, Retrium will use commercially reasonable efforts to make the System available to Customer.
(b) Updates. Retrium shall deliver all bug fixes to the System at no additional charge. Retrium shall deliver all Updates to the System that apply to the Customer's currently licensed Edition at no additional charge. From time to time, new features are released that are applied selectively to different Editions of the System. Only those updates that apply to the Customer's currently licensed Edition will be delivered automatically to the customer at no additional charge.
(c) Error Correction. Retrium shall use commercially reasonable efforts to correct all Errors or to provide a reasonable workaround as soon as is possible using its reasonable efforts during Retrium's normal business hours. Customer shall provide such access, information, and support as Retrium may reasonably require in the process of resolving any Error. This paragraph is Customer's sole and exclusive remedy for Errors.
(d) Exclusions. Retrium is not obligated to correct any Errors or provide any other support to the extent such Errors were created in whole or in part by:
(i) the acts, omissions, negligence or willful misconduct of Customer, including any unauthorized modifications of the System or its operating environment;
(ii) any failure or defect of Customer's or a third party's equipment, software, facilities, third party applications, or internet connectivity (or other causes outside of Retrium's firewall);
(iii) Customer's use of the System other than in accordance with the System's Documentation; or
(iv) a Force Majeure Event.
(e) Limitation of Remedies. Correction of Errors as defined in this Agreement are Customer's sole remedies for any Errors in the System.
4. Financial Terms
(a) Fees. Customer shall pay to Retrium all applicable fees when due and, if such fees are being paid via credit card or other electronic means, Customer authorized Retrium to charge such fees using Customer's selected payment method. If Customer's use of the System exceeds the number of Users purchased, or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. All dollar amounts refer to U.S. dollars. If Customer requires the use of a purchase order or purchase order number, Customer (a) must provide the purchase order number at the time of purchase; and (b) agrees that, except for any amendments to this Agreement that are clearly marked as such on the face of the purchase order, any terms and conditions on a Customer purchase order that conflict with this Agreement will not apply and are null and void.
(b) Taxes. Customer shall pay or shall reimburse Retrium for all sales taxes and other taxes, however characterized by the taxing authority, based upon the license fees or other charges under this Agreement or otherwise incurred on account of Customer's use of the System, except for any taxes based upon Retrium's net income or gross receipts or for any franchise or excise taxes owed by Retrium. If Customer is a tax-exempt organization, then, upon Retrium's receipt of proof of such status, Retrium shall not charge Customer for any taxes from which Customer is exempt.
(c) Pricing Changes. Retrium may revise fee rates for the System from time to time and at any time and will provide Customer with notice of any changes at least 30 days before changes in pricing. Price changes will only take effect for Customer after Customer's current contract term expires.
5. Term and Termination
(a) Term. This Agreement will remain in effect until Customer terminates its subscription to the System or until this Agreement is otherwise terminated as provided herein. Upon termination of this Agreement, Customer shall immediately pay Retrium any amounts payable or accrued but not yet paid to Retrium, including any deferred payments or payments originally to be made over time.
(b) Termination for Cause. Either party can terminate this Agreement for cause upon written notice to the other party:
(i) if a party fails to pay the other party any delinquent amounts owed to the other party hereunder within 10 days of written notice by the other party specifying the amounts owed; in the case of Retrium, immediately upon any breach by Customer of Section 2(c) above;
(ii) immediately upon any breach of any confidentiality obligations owed to such party by the other party;
(iii) if the other party has committed any other material breach of its obligations under this Agreement and has failed to cure such breach within 30 days of written notice by the non-breaching party specifying in reasonable detail the nature of the breach (or, if such breach is not reasonably curable within 30 days, has failed to begin and continue to work diligently and in good faith to cure such breach); or
(iv) upon the institution of bankruptcy or state law insolvency proceedings against the other party, if such proceedings are not dismissed within 30 days of commencement.
(c) Termination for Convenience. Customer may terminate this Agreement at any time, for any reason or no reason, by providing thirty (30) days prior written notice to Retrium of its intent to terminate the Agreement.
(d) Refunds. Within 30 days of the Effective Date, Customer may cancel this Agreement for any reason or no reason and receive a full refund of the amount paid. Following 30 days of the Effective Date, no refunds will be given for any reason or no reason.
(a) Confidential Information. "Confidential Information" means any and all tangible and intangible information (whether written or otherwise recorded or oral) of a party that: (A) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; or (B) the disclosing party designates as confidential or, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation: (i) nonpublic information relating to a party's technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (ii) third-party information that Customer or Retrium is obligated to keep confidential; (iii) the material terms and conditions of this Agreement; and (iv) any nonpublic information relating to any activities conducted hereunder. Any information regarding APIs for the System is Confidential Information of Retrium. Any data uploaded to the System is Confidential Information of Customer.
(b) Exclusions. Notwithstanding the above, the term "Confidential Information" does not include any information that is either: readily discernible from publicly-available products or literature; or approved for disclosure by prior written permission of an executive officer of the disclosing party.
(c) Use of Confidential Information. Each party shall only use Confidential Information furnished to it hereunder in furtherance of the activities contemplated by this Agreement, and it shall not disclose the Confidential Information to any other persons without the disclosing party's express written authorization.
(d) Required Disclosures. A receiving party may disclose Confidential Information of the disclosing party as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law, provided that the receiving party (i) gives the disclosing party reasonable written notice to allow it to seek a protective order or other appropriate remedy (except to the extent compliance with the foregoing would cause the receiving party to violate a court order or other legal requirement), (ii) discloses only such information as is required by the governmental entity or otherwise required by law, and (iii) and uses its best efforts to obtain confidential treatment for any Confidential Information so disclosed.
(e) Return of Information. If a disclosing party so requests at any time, the receiving party shall return promptly all copies, extracts, or other reproductions in whole or in part of the Confidential Information in its possession.
(f) Survival. The parties hereto covenant and agree that this Section 6 will survive the expiration, termination, or cancellation of this Agreement for a period of 3 years, except for Confidential Information constituting a trade secret, with respect to which this Section will survive the expiration, termination, or cancellation of this Agreement for so long as such Confidential Information remains a trade secret.
7. Intellectual Property
(a) Intellectual Property. This Agreement does not transfer from Retrium to Customer any Retrium or third party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with Retrium. Retrium, the System, the Retrium logo, and all other trademarks, service marks, graphics and logos used in connection with Retrium or the System are trademarks or registered trademarks of Retrium or Retrium's licensors. Other trademarks, service marks, graphics and logos used in connection with the System may be the trademarks of other third parties. Customer's use of the System grants Customer no right or license to reproduce or otherwise use any Retrium or third-party trademarks.
(a) Indemnification. Each party shall indemnify the other, the other's affiliates, and all of their stockholders, officers, directors, agents, and employees (each, an "Indemnified Party") at all times from and after the Effective Date against any liability, loss, damages (including punitive damages), claim, settlement payment, cost and expense, interest, award, judgment, diminution in value, fine, fee, and penalty, or other charge, including reasonable legal expenses, arising out of or relating to any claim by an unaffiliated third party (i) alleging that the use in accordance with this Agreement of the System or the Services (in the case of Retrium) or the Customer Data (in the case of Customer) infringes or misappropriates any intellectual property or privacy rights of the unaffiliated third party, or (ii) that arises or is alleged to have arisen solely out of the gross negligence or intentional misconduct of the indemnifying party (each a "Third Party Claim"). Notwithstanding the foregoing, if the System becomes the subject of such a claim of infringement then Retrium may, at its option: (x) procure for Customer the right to use the System free of any liability for infringement; (y) replace or modify the System to make it non-infringing but with reasonably comparable functionality; or (z) if Retrium determines that the previous two options are not available on a commercially reasonable basis, grant to Customer a credit for the unused portion of any prepaid access rights fees and refund any deposits paid by Customer for the affected System. Furthermore, Retrium has no liability for, and no obligation to indemnify Customer against, any Third Party Claim arising or alleging based in whole or in part on use of the System other than as specified in this Agreement, or its documentation, including use with third party hardware and software products not specifically authorized by Retrium.
(b) Indemnification Process. The Indemnified Party shall promptly notify the indemnifying party in writing of any Third Party Claim, stating the nature and basis of the Third Party Claim, to the extent known. The indemnifying party shall have sole control over the defense and settlement of any Third Party Claim, provided that, within fifteen (15) days after receipt of the above-described notice, the indemnifying party notifies the Indemnified Party of its election to so assume full control. The foregoing notwithstanding, the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel at its own expense to assist in the handling of such claim, except that the Indemnified Party's legal expenses in exercising this right shall be deemed legal expenses subject to indemnification hereunder to the extent that (x) the indemnifying party fails or refuses to assume control over the defense of the Third Party Claim within the time period set forth above; (y) the Indemnified Party deems it reasonably necessary to file an answer or take similar action to prevent the entry of a default judgment, temporary restraining order, or preliminary injunction against it; or (z) representation of both parties by the same counsel would, in the opinion of that counsel, constitute a conflict of interest. The Indemnifying Party shall not settle any such Third Party Claim without the written consent of the Indemnified Party, except for a complete settlement requiring only the payment of money damages to be paid by the Indemnifying Party.
(c) Sole Remedy. Indemnification pursuant to this Section is the parties' sole remedy for any third party claim against the other party in the nature of negligence, gross negligence, intentional misconduct, or intellectual property infringement.
9. Disclaimers and Limitations
(a) Disclaimer of Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, RETRIUM MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SYSTEM, THE SERVICES PROVIDED OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF THE SYSTEM. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH HEREIN, RETRIUM DISCLAIMS ANY WARRANTY THAT THE SYSTEM, THE SERVICES PROVIDED BY RETRIUM, OR THE OPERATION OF THE SYSTEM ARE OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED. RETRIUM MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
(b) Disclaimer of Consequential Damages. RETRIUM HAS NO LIABILITY WITH RESPECT TO THE SYSTEM, SERVICES, OR ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS AND THE COST OF COVER) EVEN IF RETRIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) Limitations of Remedies and Liability. RETRIUM'S TOTAL LIABILITY TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO ALL FEES PAID TO RETRIUM BY THE CUSTOMER IN RESPECT OF USER LICENSES FOR THE SYSTEM DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABLITY.
(a) Promotional Materials. Either party may include statements, and may use the other party's name and logos, in its website, commercial advertisements, and promotional materials for the sole purpose of indicating that Customer is a user of the System. Customer may request that Retrium stops doing so by submitting an email to firstname.lastname@example.org at any time. Please note that it may take Retrium up to 30 days to process your request.
(b) Force Majeure. "Force Majeure Event" means any act or event that (a) prevents a party (the "Nonperforming Party") from performing its obligations or satisfying a condition to the other party's (the "Performing Party") obligations under this Agreement, (b) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (c) the Nonperforming Party has not, through commercially reasonable efforts, been able to avoid or overcome. "Force Majeure Event" does not include economic hardship, changes in market conditions, and insufficiency of funds. If a Force Majeure Event occurs, the Nonperforming Party is excused from the performance thereby prevented and from satisfying any conditions precedent to the other party's performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event. When the Nonperforming Party is able to resume its performance or satisfy the conditions precedent to the other party's obligations, the Nonperforming Party shall immediately resume performance under this Agreement. The relief offered by this paragraph is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.
(c) Assignment. Customer shall not assign any of its rights under this Agreement, except with the prior written approval of Retrium, which shall not be unreasonably withheld. The preceding sentence applies to all assignments of rights, except in the event of a voluntary transfer of substantially all assets by Customer to a transferee which executes Retrium's form of agreement agreeing to be bound all of the terms and conditions of this Agreement. Any change of control transaction is deemed an assignment hereunder. Any purported assignment of rights in violation of this Section is void.
(d) Governing Law; Venue. The laws of the State of Maryland (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. Any claims or actions regarding or arising out of this Agreement must be brought exclusively in a court of competent jurisdiction sitting in Silver Spring, Maryland, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. Each party waives, to the fullest extent permitted by law, any objection that it may now or later have to (i) the laying of venue of any legal action or proceeding arising out of or relating to this Agreement brought in any state or federal court sitting in Silver Spring, Maryland; and (ii) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
(e) Recovery of Litigation Costs. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the unsuccessful party shall pay to the successful party its reasonable attorneys' fees and other costs incurred in that action or proceeding, in addition to any other relief to which the successful party may be entitled.
(f) Entire Agreement. This Agreement constitutes the final agreement between the parties. It is the complete and exclusive expression of the parties' agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement cannot be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or agreement of any other party except for those expressly contained in this Agreement. There are no conditions precedent to the effectiveness of this Agreement, other than any that are expressly stated in this Agreement.
(g) Amendments. The parties can amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement.
(h) Survival of Certain Provisions. Each party hereto covenants and agrees that the provisions in Sections 1, 2(c), 5(c), 6, 9, and 10 in addition to any other provision that, by its terms, is intended to survive the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.
(i) Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.