Master Subscription Agreement: Terms and Conditions

This Master Subscription Agreement is entered into as of the Effective Date, by and between Vamosa Limited, a private limited company ('Vamosa') and 'Customer'. By downloading WebWorxx for Websites ('the Service'), each party certifies that it has read, understands and agrees to the provisions set out in these Terms and Conditions, the combination of which comprises the Master Subscription Agreement (this 'Agreement'). The 'Effective Date' of this Agreement shall be regarded as the download date.

1. Description of Service.
Vamosa's subscription service is WebWorxx for Websites ('the Service'), a website monitoring application delivered as a managed service through Vamosa's WebWorxx Web Portal.

2. Customer Rights and Restrictions.
1. During the Term of this Agreement, and upon payment of all applicable fees, Customer may access and use the Service subscribed to hereunder pursuant to and in accordance with the provisions of this Agreement.
2. Vamosa will enable named authorised users to access and utilize the Service as contemplated herein.
3. In connection with the Service subscribed to hereunder, Vamosa will make available to Customer remote training session(s) via the Internet for all individuals whom are either Named Authorised Users or authorised to access Named Authorised Users hereunder.
4. Customer may not reverse engineer, decompile or otherwise attempt to decipher any code in connection with the Service or any other aspect of Vamosa's technology.
5. Customer may reassign Named Authorised Users without incurring additional fees.
6. Customer may inform its Named Authorised Users, customers and employees that the Service subscribed to hereunder is powered by Vamosa.
7. No other rights are granted hereunder except as expressly set forth in this Agreement.
3.Term and Termination.
Term. The relevant Term shall refer to the 'Evaluation Term' or the 'Initial Term'. The Evaluation Term shall refer to the 14 days authorized by Vamosa to allow the customer to evaluate the software and shall be free. The Initial Term refers to the first time the customer uses the software under a fully paid model. Following the Initial Term of 12 months, this Agreement shall automatically renew for successive one-year terms (each, a 'Renewal Term'). The Initial Term and any Renewal Term(s) shall collectively be referred to herein as the 'Term.'
1. Termination by Non-Renewal. Customer may elect to not renew and to terminate this Agreement by providing Vamosa with written notice of non-renewal at least thirty (30) days prior to the end of the Initial term. Such written notice of non-renewal must be submitted to finance@vamosa.com
2. Termination for Convenience. Following the Initial Term, Customer may terminate this Agreement during any subsequent Renewal Term for any reason or no reason by providing Vamosa at least forty-five (45) days' written notice, and Vamosa will refund to Customer any prepaid but unused Subscription Fees (if any). Such written notice of termination must be submitted to Vamosa at finance@vamosa.com
3. Termination for Cause. At any time, either party may terminate this Agreement immediately upon written notice to the other party (i) if the other party breaches any of its material obligations under this Agreement and such breach is not cured within thirty (30) days of receipt of written notice from the non-breaching party, or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business. In addition, Vamosa may terminate this Agreement immediately upon written notice to Customer in the event Customer accesses and/or uses the Service in a manner inconsistent with the provisions of Section 1 or breaches Section2 (4), and either party may terminate this Agreement immediately upon written notice to the other party in the event of a breach by the other party of Section 5.
4. Effect of Termination. Upon termination of this Agreement, Customer will immediately discontinue all access and use of the Service, cease to represent in any form that it is a user of the Service, and destroy all Confidential Information of Vamosa in Customer's possession and/or control. Neither party shall be liable for any damages resulting from a termination of this Agreement as provided for herein; provided, however, the termination of this Agreement shall not affect any claim arising prior to such termination.

4.Invoices
Customer shall pay to Vamosa all invoices within thirty (30) days of date of invoice.
1. Invoices. Vamosa will invoice quarterly in advance throughout the term of this order.
2. Late Payments. Payments of Fees which are due hereunder and not received by Vamosa on or before the applicable due date will accrue interest from such due date through the date paid at 4%.
3. Taxes and Withholding. Customer shall be responsible for all applicable taxes (withholding tax, sales tax, Service tax, value-added tax (VAT), goods and Service tax (GST), etc.) or duties imposed by any government entity or collecting agency.

5.Confidential Information.
1. Unless expressly authorised in writing by the other party, neither party shall disclose to any third party any non-public information or materials provided by the other party under this Agreement and reasonably understood to be confidential ('Confidential Information'), or use such Confidential Information in any manner other than to perform its obligations under this Agreement. The foregoing restrictions do not apply to any information that (i) is in or becomes available through the public domain, (ii) is already lawfully in the receiving party's possession, (iii) was known to the receiving party prior to the date of disclosure, (iv) becomes known to the receiving party from a third party having an apparent bona fide right to disclose the information, or (v) Confidential Information that the receiving party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, providing receiving party provides disclosing party timely notice of such court order or subpoena. Furthermore, Customer will keep in strict confidence all passwords and other access information to the Service.

6.Representations and Warranties.
1. Each party hereby represents and warrants to the other party that it has all necessary authority to enter into and perform its obligations under this Agreement without the consent of any third party or breach of any contract or agreement with any third party, and that it shall materially comply with applicable rules, regulations and laws relating to the access to and/or use of the Service. Vamosa expressly disclaims all warranties, express, implied or statutory, including but not limited to the implied warranties of merchantability, title, non-infringement, and fitness for a particular purpose, and any warranties arising out of course of dealing, usage, or trade, regardless of any knowledge of subscriber's particular needs. Without limiting the generality of the foregoing, Vamosa does not warrant that the platform application or any services (including support) will meet subscriber's requirements, that the platform application will operate in the combinations that subscriber may select for use, or that the operation of the platform application will be error-free or uninterrupted, and nothing in this agreement shall be construed otherwise.

7.Indemnification.
1. Defence or Settlement of Claims. Subject to Sections 7(b)and 7(c) below, Vamosa shall hold harmless, indemnify and defend any claim, suit or proceeding brought against a Customer based on an allegation that the Service (excluding open source software), as used by Customer in accordance with this Agreement, infringes upon any patent or any copyright or violates any trade secret rights of any party ('Infringement Claims'), provided Customer promptly notifies Vamosa in writing of its notification or discovery of an Infringement Claim such that Vamosa is not prejudiced by any delay of such notification. Vamosa shall pay reasonable attorney's fees, court costs, and damages finally awarded in such Infringement Claim and the reasonable costs associated with any settlement of any Infringement Claim by Vamosa. Vamosa will have sole control over the defence and any settlement of any Infringement Claim, and Customer will provide reasonable assistance in the defence of same. Vamosa will reimburse Customer for reasonable expenses incurred in providing such assistance. Vamosa shall not enter into any settlement agreement which conveys any obligation on Customer without Customer's prior written consent. Customer may participate in the defence or settlement of an Infringement Claim with counsel of its own choice and at its own expense, however, Customer shall not enter into any settlement agreement or otherwise settle any such Infringement Claim without Vamosa's express prior written consent or request.
2. Infringement Cures. Following notice of an Infringement Claim, and in the event an injunction is sought or obtained against use of the Service subscribed to hereunder or in Vamosa's opinion is likely to be sought or obtained, Vamosa shall, at its option and expense, either (i) procure for Customer the right to continue to use the Service as contemplated herein, or (ii) replace or modify the Service to make its use non-infringing while being capable of performing the same function without degradation of performance. In the event the options set forth in subsections (i) and (ii) herein above are not reasonably available, Vamosa may in its sole discretion, upon written notice to Customer, terminate this Agreement, cancel access to the Service and refund to Customer any prepaid, but unused Subscription Fees.
3. Limitation. Vamosa assumes no liability, and shall have no liability, for any Infringement Claim based on (i) Customer's access to and/or use of the Service after notice that Customer should cease use of such Service due to an Infringement Claim; (ii) any unauthorised modification of the Service by Customer or at its direction; (iii) Customer's unauthorised combination of the Service with third party programs, data, hardware, or other materials; or (iv) any trademark infringement involving any marking or branding not applied by Vamosa or involving any marking or branding applied at Customer's request.
4. The foregoing states the exclusive remedy of customer with respect to any infringement claim.
5. Subscriber agrees to indemnify, defend and hold Vamosa harmless against any loss, damage or costs (including reasonable attorney's fees) incurred in connection with any claim, suit or proceeding made or brought against Vamosa by a third party arising from or relating to Subscriber's use of the Application in violation of this Agreement.
6. Exclusion of Damages. In no event will Vamosa be liable to customer for any special, indirect, incidental or consequential damages (including without limitation loss of use, data, business or profits or the cost of replacement goods) arising out of or in connection with this agreement or the use or performance of the platform application or any services (including support), whether such liability arises from any claim based upon contract, warranty, tort (including negligence), product liability or otherwise, and whether or not Vamosa has been advised of the possibility of such loss or damage.
7. Ownership of Subscriber Data. Subscriber retains all right, title and interest in and to all Subscriber Data, subject to the rights granted to Vamosa to provide the Platform Application and Support under this Agreement.

8.Limitation on liability.
Except for (i) Vamosa's Indemnification obligation under section 7, (ii) a breach by Customer of section 2(d), or (iii) either party's breach of section 5, and to the extent required by applicable law:
1. The total cumulative liability of either party, their respective Licensors and suppliers arising out of this agreement and/or the Termination thereof shall be limited to the sum of the amounts paid and owing during the term of this agreement; and"
2. Neither party shall be liable to the other or any other person for any indirect, special, consequential or incidental, multiple, punitive or other damages (including, without limitation, loss of data, loss of income, loss of opportunity, lost profits, costs of recovery or any other damages), however caused and based on any theory of liability, and whether or not for breach of contract, negligence, or otherwise, and whether or not such party has been advised of the possibility of such damages."

9.Vamosa Intellectual Property.
1. Subscriber acknowledges and agrees that the Application and all intellectual property rights relating to or embodied therein (including without limitation, copyrights, patents, trade secrets, trademarks, moral rights and other intellectual property rights, in and to the Application, and all modifications, changes, enhancements, or additions thereto) and all intellectual property rights relating to the provision of support by Vamosa (collectively, 'Vamosa IP), are owned by Vamosa. Nothing in this Agreement gives the Subscriber any right, title or interest in, to or under the Application, support or any intellectual property rights therein.

10. Additional Terms.
1. Independent Parties. Customer and Vamosa are independent contractors. Customer shall be solely responsible for managing its Named Authorised Users' access to and use of the Service. Neither Customer nor any of its Named Authorised Users, customers, employees or representatives shall make any representations, warranties or guarantees with respect to Vamosa(including, without limitation, that Vamosa is a warrantor or co-seller of any of Customer's products and/or Service), the Service or this Agreement, except as may be expressly authorised in writing by Vamosa.
2. Assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Vamosa(which consent shall not be unreasonably withheld), except that Customer may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger,or sale of substantially all of its assets. Any attempted assignment or delegation without such consent shall be void. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
3. Force Majeure. Neither party will be responsible for any delay, interruption or other failure to perform under this Agreement due to acts beyond the control of the responsible party, but only for so long as such conditions persist. Force majeure events include, but are not limited to: natural disasters (e.g., lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; activities of local exchange carriers, telephone carriers, Internet service providers, and other third parties; explosions and fires; embargoes, strikes, and labour disputes; governmental decrees; and any other cause beyond the reasonable control of a party.
4. Choice of Law. This Agreement and any dispute arising out of or in connection with this Agreement shall be governed by and construed under the laws of Scotland, without regard to the principles of conflict of laws.
5. Notice. Any and all notices required under this Agreement shall be deemed duly given when delivered personally, sent electronically by email, sent by facsimile with receipt acknowledged, mailed by prepaid registered mail, or certified mail, return receipt requested, or delivered by a recognized commercial carrier addressed to the address last designated on the MSA Order Form or such other address as designated in writing to the other party.
6. Export. Both parties agree to comply with applicable US export and import laws and regulations.
7. Customer/Technical Support. Vamosa shall provide, at no additional charge to Customer, customer/technical support Service as further described in Exhibit A attached hereto. Customer acknowledges it will be required, from time to time, to accept Service(s) updates at no additional charge to Customer, as part of Vamosa's ongoing Service(s) enhancement and customer/technical support.
8. Compliance with Laws. Customer shall materially comply with applicable laws, rules and regulations relating to Customer's access to and/or use of the Service.
9. No Waiver. The failure of either Customer or Vamosa in any one or more instance(s) to insist upon strict performance of any of the terms of this Agreement will not be construed as a waiver or relinquishment of the right to assert or rely upon any such term(s) on any future occasion(s).
10. Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect.
11. No Third Party Beneficiaries. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof.
12. Survival. The termination of this Agreement shall not relieve either party of any liability or obligation incurred prior to such termination. In addition, the provisions of Sections 2(d) (reverse engineering), 3 (Term and Termination), 5 (Confidential Information), 6 (Representations and Warranties), 7 (Indemnification), 8 (Limitation of Liability) and 10 (Additional Terms) shall survive any termination of this Agreement.
13. Entire Agreement. This Agreement, comprised of these Terms and Conditions, including any exhibits attached hereto, sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and understandings with respect to the same. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on either party unless agreed to in writing by both parties.
14. Captions and Headings. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement.
15. Counterparts. This Agreement may be executed in one or more counterparts each of which shall be deemed an original but all of which, taken together, shall constitute one and the same instrument.

Exhibit A

Customer/Technical Support

Vamosa will provide customer/technical support to Customer, as follows:

Designated Contacts: Customer-designated administrator(s) or Named Authorised Users.

Availability: Vamosa customer/technical support is available twenty-four (24) hours per day, seven (7) days per week.

Access: Customer/technical support is available via telephone, website and email, as set forth below:

Telephone: 0044 141 574 2500

www.vamosa.com

support@vamosa.com

Response Time: Not greater than two (2) days.

 

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