Master Subscription Agreement
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITION, IN WHICH CASE THE TERM “COMPANY” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS THE SOFTWARE OR SERVICE.
Company may not access the Software or Service if Company is a direct competitor. Additionally, Company may not access the Software or Service for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement is effective between SugarCRM and Company as of the date Company accepts this Agreement.
1.1. “Affiliate” means a company which is controlled, under common control or controlling the Company during the period of such control. For the purposes of this Agreement, “control” means ownership, directly or indirectly, of more than 50% of the voting securities which vote for the election of the board of directors or other managing body.
1.2. "Company Data" means any data, information or material submitted by Company.
1.3. "Critical Control Software" means modules that report the number of authorized Subscription Users and permits SugarCRM the ability to monitor certain usage of the Service or Software.
1.4. “Intellectual Property" means any patents and applications therefore, copyrights, trademarks, service marks, trade names, domain name rights, trade secret rights, and all other intellectual property rights.
1.5. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
1.6. “Order Form” means the documents for purchases of subscriptions hereunder, including purchase orders, order notifications and order confirmation documents and addenda thereto, that are agreed to by SugarCRM, or entered into between SugarCRM and Company or Company and a certified SugarCRM partner, as applicable, from time to time. Order Forms are deemed incorporated herein by reference.
1.7. "Service" means the online, Web-based applications and platform provided by SugarCRM that are ordered by Company under an Order Form, excluding Third Party Software.
1.8. “Software” means SugarCRM product, excluding Third Party Software ordered by Company under an Order Form.
1.9. "Subscription Term” means the period of time which Company may access the Software or Service, as applicable, as set forth in an Order Form.
1.10. “Subscription User” means an employee, contractor or agent of the Company and its Affiliates authorized by Company to use the Software or the Service, as applicable, for whom subscriptions to the Software or Service, as applicable, have been purchased and who have user identifications and passwords.
1.11. "Taxes" means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including VAT (subject to reverse charge), GST (subject to reverse charge), excise, sales, use or withholding taxes.
1.12. "Third-Party Software" means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Software or Service, and are identified as third-party software.
2.1. SugarCRM shall make the Software or Service, as applicable, available to Company pursuant to the terms set forth in this Agreement and the applicable Order Form during each Subscription Term. All rights not expressly granted to Company are reserved by SugarCRM and its licensors.
2.2. Exhibit A sets forth the additional terms specifically applicable to use of the Service.
2.3. Exhibit B sets forth the additional terms specifically applicable to Enterprise Software.
2.4. Use of Software. Company has a non-exclusive, revocable, non-transferable, right to access, use and modify the Software in a development and production environment during the Subscription Term, in each case solely for Company’s own internal business purposes and limited to the number of Subscription Users for which Company has paid the applicable Subscription Fee. Subscription User accounts cannot be shared or used by more than one individual.
2.5. SugarCRM Responsibilities. SugarCRM shall provide Company with a license key to allow Company to access the Software or Service, as applicable, upon SugarCRM’s acceptance of Company’s purchase of subscriptions via an Order Form. SugarCRM shall provide Company with basic support for the Software or Service, as applicable, at no additional charge, and/or upgraded support if purchased. SugarCRM will not provide any support of the development environment. If Company opts to purchase upgraded support levels, then Company agrees to purchase such upgraded support for all Subscription Users. Information relating to support levels may be viewed at the following site http://www.sugarcrm.com/page/support-offerings/en.
2.6. Company Responsibilities.
2.6.1. Company shall (a) be responsible for all Subscription Users’ compliance with the Agreement, (b) be solely responsible for the accuracy, integrity, and legality of Company Data and of the means by which it acquired Company Data, (c) use the Software or Service, as applicable, only in accordance with all documentation provided with the Software or Service, as applicable, and all applicable laws and regulations and (d) notify SugarCRM immediately of any unauthorized use of any password, account, copying or access to the Service or Software, as applicable.
2.6.2. Company shall not, directly or indirectly, (i) send or store spam, unlawful, infringing, obscene, or libelous material, or Malicious Code (ii) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to: (a) the Software or Service, (b) any modified version or derivative work of the Software created by the Company or for the Company, or (c) any copy or version of the Software, either modified or not, licensed under a TPPI License, in each case for any purpose including timesharing or service bureau purpose; (iii) remove or alter any copyright, trademark or proprietary notice in the Software or Service; (iv) modify any open source version of SugarCRM’s software source code (“Original Code”) to develop a separately maintained source code program (the “Forked Software”) so that such modifications are not automatically integrated with the Original Code or so that the Forked Software has features not present in the Original Code, (v) reverse engineer, decompile or modify any encrypted or encoded portion the Software or Service, as applicable, or any component thereof, (vi) copy any ideas, features, functions or graphics of the Software or Service for any purpose other than what is expressly authorized in this Agreement, (vii), run on any Company hardware, or have deployed for use, any copy or version of the Software licensed under a TPPI License (viii) simultaneously run the Software with SugarCRM Community Edition (SugarCRM’s open source version) and/or (ix) modify any portion of the Critical Control Software.
3. Third Party Software
3.1.1. Certain Third-Party Software is subject to terms and conditions other than those in the Agreement. Company may view the relevant licenses and/or notices for such Third-Party Software as provided in the text files of the Service and the Software. Company agrees to comply with terms and conditions contained in such licenses for the relevant Third-Party Software.
3.1.2. Company may wish to use software developed by third parties to add functionality to the Service or the Software which are licensed under the GNU General Public License Version 3 or the Sugar Public License (such third party programs, “Third Party Plug-Ins” and the licenses for such Third Party Plug Ins are the “TPPI Licenses”). SugarCRM approves the use of such Third Party Plug Ins with the Software and the Service so long as such use is limited to the internal use by Company in a manner which does not subject the Software or the Service to the terms of the TPPI Licenses. SugarCRM does not warrant or support Third Party Plug-Ins.
4. Proprietary Rights.
4.1. SugarCRM Intellectual Property. SugarCRM and its licensors own the SugarCRM Intellectual Property in and to the Software and the Service, and, in each case, any modifications thereto, and any modifications provided by Company or Company’s third party consultant. This Agreement does not convey or transfer any ownership rights in the SugarCRM Intellectual Property in the Service or the Software. The SugarCRM name, logo, and trade names are trademarks of SugarCRM and no right is granted to use them except as expressly granted herein. SugarCRM reserves all rights, title, and interest in and to the Software and Service.
4.2. Ownership of Company Data. Company owns all Intellectual Property Rights in and to the Company Data.
4.3. Suggestions. SugarCRM shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use, copy, modify, or distribute, including by incorporating into the Software and/or Service any suggestions, enhancement requests, recommendations or other feedback provided by Company, including Subscription Users, relating to the Software and/or Service.
5. Fees and Payment.
5.1. Fees: Company shall pay all fees specified in all Order Forms hereunder. Except as otherwise provided: (i) fees set forth ineach Order Form hereunder shall be fixed during the Subscription Term of such Order Form; (ii) fees set forth in the initial Order Form hereunder will be invoiced upon the Order Form date or upon acceptance of a purchase order, if applicable; (iii) fees are quoted and payable in United States dollars; (iv) fees are based upon the Software, Service, and/or services purchased and not actual usage; (v) payment obligations are non-cancelable and fees paid are non-refundable; and (vi) the number of Subscription Users purchased cannot be decreased during the relevant Subscription Term set forth on the Order Form. Subscription Users added in the middle of the month will be charged for that full monthly period and the monthly periods remaining in the then current Subscription Term. SugarCRM reserves the right to modify its fees after the initial Subscription Term.
5.2. Renewal. Unless set forth otherwise in an Order Form, the Subscription Term of an Order Form shall automatically renew for additional one year renewal terms unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term. All fees will be invoiced annually in advance approximately 30 days prior to the applicable anniversary date, and any pricing changes for such renewal term will be reflected on such invoice. Renewal fees may be greater than the prior Subscription Term fees due to an increase in the number of Subscription Users.
5.3. Payment. Unless Company pays by credit card, fees are due net 30 days from the invoice date. Company agrees to provide SugarCRM with complete and accurate billing and contact information.
5.4. Overdue Charges. Overdue amounts are subject to interest at 1.5% per month, or the maximum rate permitted by law, whichever is lower, and may result in suspension of Company’s ability to access the Service until payment is made. Notwithstanding the foregoing, if the applicable charges are under reasonable and good faith dispute and Company is cooperating diligently to resolve the dispute, SugarCRM will not exercise its rights set forth under this section.
5.5. Taxes. Unless otherwise provided, the fees do not include any Taxes, and Company is responsible for paying all Taxes associated with its purchases hereunder, excluding Taxes based on SugarCRM’s net income or property.
6. Term and Termination.
6.1. Term: This Agreement commences on the Effective Date and continues until all Subscription Users granted in accordance with this Agreement have expired or been terminated. The Subscription Term of an Order Form commences on the Order Form date (for the initial purchase of Subscription Users) or the effective date of such Order Form (for subsequent purchases of Subscription Users), and continues for the Subscription Term specified in such Order Form.
6.2. Termination for Cause:
6.2.1. Termination by SugarCRM. SugarCRM shall immediately terminate the Agreement if (i) Company’s use of the Third Party Plug Ins subjects the Software or the Service to the TPPI License, or (ii) Company breaches Section 2.6.2(ix). Company shall have no right to cure the breaches set forth under this Section 6.2.1.
6.2.2. Termination by Company or SugarCRM. Either party may terminate this Agreement for cause prior to the end of a Term if the other party (i) materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for thirty (30) days following written notice of the breach or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
6.3. Surviving Provisions. Company’s obligation to make a payment of any outstanding, unpaid fees and the terms of Sections 1, 2.6, 4, 5.1, 6.3, 7, 8, 9, and 11 shall survive termination or expiration of this Agreement.
The Software and Service, and the terms of this Agreement are confidential and proprietary information of SugarCRM and/or its licensors and vendors and any other information that one party provides to the other party during the term of this Agreement that is identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, shall be confidential information (all of the foregoing collectively are referred to as “Confidential Information”) of the disclosing party (the “Disclosing Party”). Neither party (the “Receiving Party”) will disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information to perform under this Agreement and who are bound by written agreement not to disclose third- party confidential or proprietary information disclosed to such party, or (b) as such disclosure may be required by law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit either party’s use of information (a) previously known to it without obligation of confidence, (b) independently developed by or for it without use of or access to the other party’s Confidential Information, (c) acquired by it from a third party which is not under an obligation of confidence with respect to such information, or (d) which is or becomes publicly available through no breach of this Agreement. Each party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section. Within five (5) days after a Disclosing Party’s request, the Receiving Party shall return or destroy the Disclosing Party’s Confidential Information.
This section shall not apply to any publicly available or independently developed information or the open source version of the SugarCRM software licensed under the TPPI Licenses.
8. Warranties, Exclusive Remedies and Disclaimers.
8.1. SugarCRM Warranties. SugarCRM warrants that (i) it will provide the Service in a manner consistent with general industry standards for services that are similar to the Service; (ii) the Service or Software, as applicable, shall perform materially in accordance with the online user guide for the Service or Software, as applicable. For any breach of either warranty, Company’s exclusive remedy shall be as provided in Section 6.2.2.
8.2. Disclaimer of Warranties: EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SOFTWARE AND THE SERVICE ARE PROVIDED TO COMPANY 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. SUGARCRM'S SERVICE MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND SUGARCRM IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
9. Limitation of Liability.
9.1. Limitation on All Damages. EXCEPT FOR COMPANY’S BREACH OF SECTION 2.6.2, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY COMPANY TO SUGARCRM UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY . THE FOREGOING SHALL NOT LIMIT COMPANY’S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
9.2. Disclaimer of Consequential Damages. EXCEPT FOR COMPANY’S BREACH OF SECTION 2.6.2, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING UNDER THIS AGREEMENT AND WHETHER OR OT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. Government Users. If Company is a federal government entity, SugarCRM provides the Software and Service, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Software and Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in this Agreement.
11.1. Audit. Company shall maintain accurate records necessary to verify the number of Subscription Users. Upon SugarCRM’s or its third party appointee’s written request, Company shall provide SugarCRM or its third party appointee with such records within ten (10) days. If Company has more Subscription Users than Company has paid for, Company shall immediately pay the applicable fees for such additional Subscription Users, in addition to any costs incurred by SugarCRM associated with reviewing such records.
11.2. Press Releases. Either party may include the other's name and logo in customer or vendor lists. Company also agrees to consider the following upon reasonable request: (i) serving as a reference or hosting onsite reference visits; (ii) collaborating on press releases announcing or promoting the relationship; and (iii) collaborating on case studies or other marketing collateral.
11.3. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Software and Service. Without limiting the foregoing, (i) each of SugarCRM and Company represents that it is not named on any U.S. government list of person or entities prohibited from receiving exports, and (ii) Company shall not permit Subscription Users to access or use the Software or Service, as applicable, in violation of any U.S. export embargo, prohibition, or restriction.
11.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms hereunder), without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party. Any attempted assignment in breach of this section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.5. Relationship of Parties. SugarCRM and Company are independent contractors, and nothing in this Agreement or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. There are no third party beneficiaries to this Agreement.
11.6. Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California and the federal U.S. laws applicable therein, excluding its conflicts of law provisions, and Company and SugarCRM agree to submit to the personal and exclusive jurisdiction of the courts located in Santa Clara County, California. The parties agree the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
11.7. Notices. Notices regarding this Agreement shall be in writing and addressed to Company at the address Company provides, or, in the case of SugarCRM, when addressed to SugarCRM, Inc., Attn. Legal Counsel, 10050 North Wolfe Road SW2-130 Cupertino, CA 95014 USA. Notices regarding the Service and/or Software in general may be given by electronic mail to Company’s e-mail address on record with SugarCRM and such notice shall be deemed to have been delivered twelve (12) hours after sending.
11.8. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party's employees), service disruptions involving hardware, software or power systems not within such party's possession or reasonable control, and denial of service attacks.
11.9. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the amendment or waiver is to be asserted. To the extent of any conflict between these terms and conditions and any other schedule or attachment hereto, these terms and conditions shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or in any other order document (other than an Order Form, statement of work, or other mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void.
11.10. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
Use of Service
This Exhibit only applies when SugarCRM hosts the Software on its servers via the SugarCRM OnDemand Service.
- Company shall be upgraded free of charge by SugarCRM to the current version of the Service within thirty (30) days of SugarCRM’s release of such new version unless Company used a module other than the module known as “SugarCRM Studio” or “Module Builder” to customize the Service for Company’s environment.
- SugarCRM will not be obligated to upgrade Company if it has customized the Service with a module other than SugarCRM Studio or Module Builder and should SugarCRM elect (in its sole discretion) to upgrade Company in any such case, such upgrade shall be at an additional cost and pursuant to a separate written agreement.
- Company shall not, directly or indirectly (i) conduct automated functionality tests or load tests on the Service, (ii) create Internet links to the Service, and/or (iii) "frame", “fork” or "mirror" any part of the Service on any other device.
- Company’s Data Storage. With respect to the Service, the maximum disk storage space provided to Company at no additional charge is the greater of (i) 30MB per User and (ii) 1GB. If the amount of disk storage required exceeds these limits, Company will be charged SugarCRM’s then-current storage fees.
- Backup of Data. With respect to the Service, Company shall have the right to receive two (2) recoveries of Company’s Data from backup per calendar month free of charge. Additional recoveries are available for an additional charge at SugarCRM’s then-current rate for such backup services, which rate can be ascertained by contacting a SugarCRM sales representative.
- Company represents and warrants that it is in compliance with and will comply with all applicable privacy and data protection laws and regulations with respect to any Company Data uploaded or submitted to the Service and its use of the Service and performance of its obligations under this Agreement.
Enterprise Software Terms
This Exhibit only applies if Company has purchased access to the Enterprise Software via an Order Form.
- “Portal” means a software module that is designed to communicate with the Software and the Service.
- “Portal User” means those individuals that are Company’s customers employees who may access and use the Portal. A Subscription User, Company/Affiliate employee, contractor or agent cannot be a Portal User.
- Company has a non-exclusive, revocable, non-transferable, right to access, and use the Portal in a development and production environment during the Subscription Term, in each case solely for Company’s own internal business purposes and limited to the number of Portal Users set forth in this Exhibit B. Portal User accounts cannot be shared or used by more than one individual. One (1) Company employee may access and use the Portal for administration purposes only -- to provide the Portal to the Portal Users.
- SugarCRM shall provide the Portal to Company via download and Company will then host the Portal, or, if Company has selected the Service, SugarCRM will host the Portal for Company. If the Portal is hosted by SugarCRM, Company may have fifty (50) concurrent Portal Users access and use the Portal at any given time. If Company is hosting the Portal, then Company may have an unlimited number of Portal Users access and use the Portal. SugarCRM may limit the number of Company’s Portal Users at any time by providing Company with a written notice if SugarCRM believes, in its sole discretion, that Company’s Portal Users are burdening or overwhelming SugarCRM’s system.
- By entering into this Agreement, Company is acting as agent for Company’s Portal Users and binding them to the terms hereof. Company shall be responsible for any act or omission of Company’s Portal Users and of Company’s Portal Users' compliance with all of the terms of this Agreement.