This Order Form is made pursuant and subject to the SaaS Services Agreement at (“Agreement”), which Company has reviewed and agrees is a binding agreement between Company and Sustain.Life, Inc. (“Sustain.Life”) for the Service. The Agreement is incorporated herein by reference. In the event of any conflict between this Order Form and the Agreement, the Agreement will control. Capitalized terms not defined in this Order Form have the meanings given to them in the Agreement.
This Agreement is made between Sustain.Life and Company and will be effective upon Company’s initial access to the Service through any online provisioning, registration, or order process. This Agreement governs Company’s use of the Service.
For good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:
"Company Data" means all data or information submitted by Company to the Service.
"Order Form" means the online document(s) for placing subscription orders entered into between Company and Sustain.Life. All Order Forms are incorporated into this Agreement by reference.
"Users" means Company, and individuals authorized by Company, to use the Service.
2.1 Subject to the terms of this Agreement and each Order Form, Sustain.Life grants Company a non-exclusive, non-transferable, non-sublicensable right, during the applicable Subscription Term specified in the Order Form, to access and use the Service for Company’s internal business purposes. Company may permit Users to use the Service and will be responsible for their compliance with this Agreement. Usage is limited to any metrics and volumes specified in an Order Form. Company agrees that its subscription to the Service is neither contingent on the delivery of any future functionality or features nor dependent on any public comments made by Sustain.Life regarding the same.
2.2 Company will (i) be responsible for the accuracy and legality of, and the means by which Company acquires, Company Data, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and (iii) use the Service only in accordance with this Agreement and applicable laws and regulations and otherwise comply with applicable laws and regulations in connection with this Agreement.
2.3 Company will not (i) make the Service available to anyone other than Users, (ii) distribute, sell, resell, rent, or lease the Service, (iii) store or transmit infringing or otherwise unlawful material or store or transmit malicious code or material on the Service, (iv) interfere with or disrupt the integrity, security, or performance of, or data contained on, the Service, or (v) disassemble, decompile, reverse-engineer, copy, translate, or make derivative works of or remove any proprietary notices or labels from the Service.
2.4 The Service may contain links to, integrate with, or provide the ability for Company or Users to access third party products, services, or websites. Sustain.Life will not be responsible for any such third party products, services, or websites. Sustain.Life may update, upgrade, revise, or change the Service and its features and functionality (collectively, “Updates”) at any time, provided that Sustain.Life will not materially decrease the functionality of the Service during a Subscription Term. Updates are considered part of the Service.
3.1 As between the parties, Company owns and retains all rights in and related to Company Data. Company will collect and maintain any personal data in Company Data in compliance with all applicable data privacy and protection laws and regulations. Company grants Sustain.Life a nonexclusive right to process Company Data to provide the Service. Company may access, export, and retrieve Company Data at any time during a Subscription Term. Company will not store or transmit (i) protected health data, as defined in HIPAA, (ii) financial information protected under GLB, (iii) information protected by ITAR, (iv) information subject to PCI Security Standards, or (v) export-controlled matter, in the Service.
3.2 Sustain.Life will maintain industry-standard administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Company Data. Company agrees that Sustain.Life may disclose Company Data (i) when compelled by law or as otherwise required or mandated by law, (ii) to third party service providers that Sustain.Life retains to provide the Service, and (iii) as expressly permitted in writing by Company. Sustain.Life reserves the right to utilize Company Data for statistical, marketing, and network analysis (including at a parent-company level) as well as to analyze, improve, and further develop Sustain.Life products and services, provided it uses commercially available methods to anonymize Company Data prior to any such usage.
4.1 Sustain.Life and its affiliates and/or licensors own all intellectual property and other rights in and related to the Service, as well any improvements, related knowledge, or processes, and derivative works thereto. All rights not expressly granted to Company herein are reserved by Sustain.Life and/or its licensors.
4.2 Sustain.Life will own and have the unrestricted right to use and incorporate into the Service or other Sustain.Life offerings, any suggestions, enhancement requests, recommendations, or other feedback provided by Company, including Users, relating to the Service.
The parties may exchange Confidential Information in connection with this Agreement. “Confidential Information” or “CI” means all information disclosed by a party (“Discloser”) that should reasonably be understood by the other party (“Recipient”), because of markings, the circumstances of disclosure, or the nature of the information itself, to be confidential to Discloser. CI may be disclosed in writing, electronically, or by any other means. Recipient will (i) take reasonable steps to protect Discloser’s CI from unauthorized access, use, or disclosure similar to those steps it would take to protect its own, similar information, (ii) not disclose CI to any third party, and (iii) not use Discloser’s CI other than in connection with this Agreement. Recipient may disclose CI to its employees, representatives, and other agents (“Representatives”) who have a need to know the CI for purposes of this Agreement, and who are required to protect the CI under the terms of a written agreement with restrictions at least as protective as those herein. Sustain.Life’s CI specifically includes the Service and the existence of this Agreement. The parties’ obligations with respect to Confidential Information will survive termination of this Agreement for three (3) years, except for information that is a trade secret, which will remain subject to the obligations hereunder as long as such information is a trade secret under applicable law.
6.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS”, AND WITHOUT WARRANTIES. SUSTAIN.LIFE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, IN CONNECTION WITH THIS AGREEMENT OR REGARDING RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. SUSTAIN.LIFE EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT, NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT. SUSTAIN.LIFE DOES NOT REPRESENT OR WARRANT THAT USE OF THE SERVICE WILL BE SECURE, ERROR-FREE, OR UNINTERRUPTED OR THAT THE SERVICE WILL MEET COMPANY’S REQUIREMENTS.
6.2 Indemnity. Company will, at its sole expense, defend and indemnify Sustain.Life, from any third party claims, demands, suits, or proceedings and pay any agreed to settlement or awarded damages, fees, and costs, arising out of (i) Company Data, (ii) use of the Service in violation of applicable laws or regulations or this Agreement, and (iii) an allegation that information and/or materials provided to Sustain.Life by Company under this Agreement infringe the proprietary rights of such third party.
6.3 Limitation of Liability. Subject to any requirements and limitations, if any, of applicable law, and except for the indemnity obligations in Section 6.2 and Company’s payment obligations, neither party will be liable to the other party, regardless of the theory of liability, for (i) indirect, special, consequential, collateral, or incidental damages, including, without limitation, any damage or injury to business earnings, lost profits, data, or goodwill suffered by the other party arising from and/or related to this Agreement, even if advised of the possibility of such damages, and (ii) cumulative direct damages arising from and/or related to this Agreement that exceed the Subscription Fees paid by Company in the twelve (12) months preceding the first incident giving rise to liability.
Company will pay the fees for the Service set forth in an Order Form. All fees for the Service will be paid in advance of the applicable Subscription Term. All Order Forms are non-cancelable and all fees are non-refundable, unless otherwise agreed to by the parties. All invoices will be paid within thirty (30) days of receipt unless otherwise agreed in writing in a Order Form. Fees under this Agreement do not include any taxes, including, but not limited to, value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction ("Taxes"). Company is responsible for paying all Taxes associated with its purchases hereunder.
8.1 This Agreement commences on the effective date of the first Order Form between the parties and continues until all subscriptions granted in accordance hereunder have expired or been terminated.
8.2 Subscriptions to the Service commence on the Subscription Start Date and continue for the Subscription Term, both as specified in the applicable Order Form. Following the initial Subscription Term, and unless otherwise agreed to by the parties, the subscription will automatically renew for one (1) year terms, unless either party gives the other party written notice (email acceptable) of non-renewal at least thirty (30) days prior to the end of the then-current term. Any pricing changes for renewal terms will be reflected on the renewal invoices.
8.3 Either party may terminate this Agreement or an Order Form if the other party has not cured a material breach hereof (or thereof) within thirty (30) days of receiving a written breach notice from the other party. Upon any such termination by Company, Sustain.Life will promptly provide Company a refund of any unused, prepaid Subscription Fees covering the remainder of the Subscription Term after the effective date of termination. Upon any such termination by Sustain.Life, Company will pay any unpaid Subscription Fees covering the remainder of the Subscription Term(s) of all Order Forms after the effective date of termination.
8.4 Upon any expiration or termination, Company will immediately cease any further use of the Service and Sustain.Life will make all Company Data available to Company for electronic retrieval for a period of thirty (30) days, but thereafter Sustain.Life will, unless legally prohibited or directed by Customer, delete Company Data in Sustain.Life’s systems or in Sustain.Life’s possession or control.
8.5 In addition to any of its other rights or remedies in this Agreement, Sustain.Life may, in its reasonable discretion, deactivate Company’s user name(s) and password and/or suspend provision of the Service, upon prior written notice to Company as the circumstances permit (i) if Company is thirty (30) days or more overdue on a payment, (ii) if Sustain.Life deems such suspension necessary as a result of Company’s breach of Section 2, (iii) if Sustain.Life reasonably determines suspension is necessary to avoid material harm to Sustain.Life (including the security of the systems used to provide the Service) or its other customers, or (iv) as required by law or at the request of governmental entities.
8.6 Any terms that by their nature extend beyond expiration or termination of this Agreement will survive.
Sustain.Life may modify or update this Agreement from time to time. Sustain.Life will post the modified or updated Agreement to this website and update the Last Revised date above. Modifications and updates will become effective upon posting. It is Company’s responsibility to periodically review this Agreement for any changes. Company’s continued use of the Service after any modifications or updates constitutes Company’s acceptance of this Agreement, as updated. If Company does not agree to this Agreement or any updated Agreement, Company may not use or access (and/or shall immediately discontinue further use of and/or access to) the Service.
This Agreement and any related action will be governed and interpreted by the laws of the State of New York, excluding its conflicts of laws rules. Venue for any dispute arising out of this Agreement will be the state or federal courts located in New York, NY, and each party (Company and Sustain.Life) consents to personal jurisdiction to such court(s) and also waives any right it may otherwise have to challenge the appropriateness of such fora. This Agreement and all Order Forms hereunder constitute the entire agreement between the parties with respect to the subject matter herein and supersede all other written or oral agreements and representations related thereto. No terms in a Company purchase order or other order documentation will be incorporated into this Agreement, and all such terms are null and void. This Agreement, and the rights and obligations hereunder, may not be assigned without the prior written consent of the non-assigning party, which will not be unreasonably withheld, provided that either party may assign this Agreement, and the rights and obligations hereunder, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any assignment in violation of this provision is void and without effect. The parties are independent contractors. Nothing in this Agreement creates an agency relationship, partnership, employment, joint venture, or similar relationship between the parties. There are no third party beneficiaries to this Agreement. Neither party will use the other’s name or logo in any press release or any other public statements or marketing materials without the prior written consent of the other party in each instance. Neither party will be responsible for delays or failures to perform (except with respect to payment obligations) resulting from acts beyond the reasonable control of such party. All notices pursuant to this Agreement will be in writing and will be deemed duly given when delivered at the address set forth in the applicable Order Form and directed to a party’s Legal department. Billing and system related notices will be provided to Company’s designated billing contact or system administrator, as applicable.