Master Subscription Agreement Term & Conditions
SECTION 1: DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with Fluence or the Customer.
"Agreement" means this Master Subscription Agreement together with any Order Form to which it is appended, and any Appendices executed by Fluence and the Customer or incorporated herein by reference.
“Applicable Privacy Laws” means all applicable data protection legislation, regulations and rules related to data security, data integrity and the safeguarding of personal information and those data protection laws applicable to Fluence and Customer within the United States of America and Canada.
“Content” means: (i) information obtained or developed by Fluence related to the Service and provided to Customer, including all Software specified and agreed upon pursuant to this Agreement; (ii) the Documentation; and (iii) Updates.
"Customer Data" means any data, information or material provided or submitted by Customer or Users to the Service in the course of using the Service, together with any Customer output resulting from Customer’s usage of the Service. Customer Data is at all times owned by Customer.
"Documentation" means, collectively, technical information and materials, in written or electronics form, delivered with the Service by Fluence to Customer and that are intended for use in connection with the Service.
“Effective Date” means the date that the Order Form is signed by the Customer.
“Fees” means the fees and charges specified in an Order Form or Statement of Work, including both recurring and one-time charges.
"GDPR" means EU General Data Protection Regulation 2016/679.
“Order Form” means any validly executed order form between Fluence and the Customer for the purchase of Service.
“Party” means either Fluence Technologies Inc. or the Customer.
"Proprietary Information" means confidential or proprietary information of a Party relating to that party’s business or operations and with respect to Customer includes Customer Data and details of Customer’s internal operating environment and, in the case of Fluence, includes the technology underlying the Service, the Documentation (including any complete or partial copies thereof), the Service Concepts, third-party databases, and any benchmark or survey results.
"Service" means all Software and services specified and agreed upon in this Agreement and the Standard Support Terms available at [INSERT URL], to be delivered by Fluence to Customer hereunder, including the Content and Updates, but excluding any third-party database and third-party products.
"Service Concepts" means the concepts, techniques, ideas, and know-how embodied and expressed in any computer programs included in the Service, including their structure, sequence and organization.
“Software” means the Fluence software applications made available to Customer as specified in the Order Form and any Updates to such Software made available by Fluence to Customer under this Agreement.
“Statement of Work” means any validly executed description of Professional Services between Fluence and the Customer.
“Term” has the meaning given in Section 7.1.
“Updates” means all upgrades, modified versions, or updates, to the Software or Service whether provided to the Customer by Fluence through maintenance and support services or otherwise at any time.
"User(s)" means Customer employees (and any contractors of Customer for whom access is requested by Customer) who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by Fluence at Customer’s request).
SECTION 2: LICENSE GRANT AND PROFESSIONAL SERVICES
2.1 Subject to the terms and conditions of this Agreement, Fluence hereby grants Customer and its Affiliates a worldwide, non-transferable, non-sublicensable, non-exclusive license during the Term to access the Services described on the applicable Order Form and to install and use any related Software made available by Fluence for use with the Services, subject to any other restrictions or limitations identified in this Agreement or the applicable Order Form together with the Documentation for Customer’s own internal business purposes.
2.2 Fluence may provide certain professional services as set out in a mutually agreed statement of work or description of services incorporated by reference into this Agreement and which sets out the Customer’s project-specific activities, together with the associated deliverables, work effort, resources and costs. Expiration or termination of this Agreement shall result in the automatic termination of all estimates or statements of work then in effect.
SECTION 3: RESTRICTIONS ON USE
3.1 Customer is responsible for all activity occurring under its User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with use of the Service, including those related to Applicable Privacy Laws, international communications and the transmission of technical or personal data.
3.2 Customer shall not, and shall not allow any third party to: (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service, Software and/or Documentation in any form or media or by any means; (b) attempt to decompile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; (c) access all or any part of the Service, Software and Documentation in order to build a product or service which competes with the Service, Software or Documentation; (d) license, sublicense, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit or otherwise make the Service, Software or Documentation available to any third party; (e) use the Service, Software or Documentation in a manner other than as specifically permitted in this Agreement and the applicable Order Form.
3.3 User accounts cannot be shared or used by more than one individual User, but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment, or otherwise changed job status or function and no longer use the Service.
3.5 In the event that Fluence determines that, at any time during the Term, Customer is using a quantity of named User licenses within the Service which exceeds the number of named User licenses specified within the Order Form, Fluence shall notify the system administrator and Fluence will have the right to immediately invoice Customer for any such excess usage.
3.6 Customer may use the Service only for internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violates any third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
SECTION 4: INTELLECTUAL PROPRIETARY RIGHTS; UPDATES AND USAGE RIGHTS
4.1 The Service, Software and Documentation constitutes valuable trade secrets of Fluence or the relevant third-party owners (as the case may be). Fluence will at all times have and retain sole and exclusive ownership of and all right, title, and interest in and to the Service Software and Documentation and all intellectual property rights therein. Customer acknowledges that all intellectual property rights in the Service, Software and Documentation belong and shall belong to Fluence or the relevant third-party owners (as the case may be), and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Agreement.
4.2 Fluence collects anonymized information and data on how the Software is used by Customer and Users (such as, but not limited to, benchmarking data, usage patterns and roles) in order to improve the delivery of Software and for marketing and other purposes (collectively, “Usage Data”). Fluence shall be permitted to disclose such Usage Data in an anonymous and aggregated form at its discretion and without compensation to Customer or any User. All right, title and interest to Usage Data shall vest in, and be owned by, Fluence. Fluence shall have a royalty-free, worldwide, non-exclusive, transferable, sub-licensable, irrevocable, right and license to use or incorporate into the Software or the Service any suggestions, enhancement requests, recommendations, new software ideas or other feedback provided by Customer or Users relating to the operation of the Software or Service.
4.3 Customer Data Backups. Fluence is responsible for maintaining a backup of seven (7) days of Customer Data and for an orderly and timely recovery of such data in the event that the use of the Service may be interrupted. Fluence shall maintain daily backups of all Customer Data that can be recovered within four (4) hours during the following business day. Additionally, Fluence shall use commercially reasonable efforts to maintain the security of Customer Data, as provided herein.
SECTION 5: CONFIDENTIALITY
5.1 Each Party shall keep confidential, shall not use for itself or the benefit of others, and shall not copy or allow to be copied, in whole or in part, any Proprietary Information other than as reasonably necessary to fulfill the terms of this Agreement or as permitted under the Applicable Privacy Laws. Neither Party shall, without the other Party's prior written consent, disclose, provide, or make available any of the Proprietary Information of the other Party in any form to any person, except to its bona fide employees, officers, or directors whose access is necessary to enable such Party to exercise its rights hereunder.
5.2 The obligations of confidentiality imposed upon the parties by the foregoing paragraph shall not apply with respect to any alleged Proprietary Information which: (a) is known to the recipient thereof prior to receipt thereof from the other Party hereto; (b) is disclosed to said recipient by a third party who has the contractual right to make such disclosure; (c) is or becomes a part of the public domain or public knowledge through no fault of said recipient; (d) is independently developed by the recipient without reference to the disclosing Party’s Proprietary Information; or (e) is required to be disclosed under operation of law, as long as the Party affected has the opportunity to apply to the applicable legal entity for a protective order.
5.4 Upon the expiration or termination of the Agreement, or on completion of a Party’s obligations under the Agreement, each Party shall use its commercially reasonable efforts to return, or destroy, or cause to be returned or destroyed, in a prompt manner, all materials in any medium that contain, refer or relate to the Proprietary Information of the other Party.
SECTION 6: FEES AND PAYMENT TERMS
6.1 Subject to the terms and conditions of this Agreement and the applicable Order Form and Statement of Work, Fluence will invoice Customer for the applicable Fees as provided in each Order Form and Statement of Work, and Customer agrees to pay Fluence those Fees. Except as provided herein, all Fees and other payment obligations hereunder are non-cancellable and all amounts paid are nonrefundable. Unless otherwise provided in the relevant Order Form or Statement of Work, each invoice submitted to Customer will be due and payable net 30 days after the date of the invoice. Subscription Fees under an Order Form are based on the Services and the number of Users and not actual usage of the Software. The number of User subscriptions cannot be decreased during the applicable Term provided in the Order Form.
- All amounts payable under this Agreement and any Order Form or Statement of Work are (i) exclusive of any sales, use, excise, value added, goods and services, and gross receipts taxes, and any and all similar taxes or legally imposed fees, duties or contributions based upon such amounts, this Agreement and any Order Form or Statement of Work, except for franchise taxes, if any, or taxes based upon the net income of Fluence; and (ii) reflect the net cash payable to Fluence, net of any and all such taxes, levies, fees and withholdings of every kind or nature. All such taxes, levies, fees and withholdings and the obligation to pay such amounts to the appropriate taxing authorities in a timely manner are the sole responsibility of Customer.
- Any invoice remaining unpaid after the due date will accrue interest from the due date until the date Fluence receives such payment at a rate equal to the lesser of one and one-half percent (1.5%) per month or the highest rate permitted by law. Customer shall not offset any amounts owed under an Order Form or Statement of Work against any other Order Form or Statement of Work.
- Notwithstanding any other provision contained in this Agreement, if Customer fails to pay any amount when due hereunder, then in addition to any other rights and remedies available to Fluence hereunder or at law or in equity, Fluence may suspend the Services and Professional Services under any and all Order Forms and Statements of Work then in effect, with ten (10) days prior written notice, until all outstanding past due amounts are received by Fluence.
SECTION 7: TERM AND TERMINATION
7.1 This Agreement and each subscription for the Service shall start on the Effective Date and continue for an initial term of three (3) years (the “Initial Term”). At the end of the Initial Term, this Agreement and applicable subscriptions shall be automatically renewed for successive one (1) year terms (each a “Renewal Term”), subject to the current version of this Agreement then in effect. Collectively, the Initial Term and any Renewal Terms constitutes the “Term”.
7.2 Either Party may elect to not renew this Agreement or a subscription for the Service by giving at least ninety (90) days’ written notice to the other Party prior to the end of the then-current Term.
7.3 In the event that: (i) either Party commits any material breach of this Agreement; and (ii) such material breach is not cured within 30 days (or within ten days with respect to a failure to make any payment required hereunder) after the non-breaching Party gives to the breaching Party written notice of such material breach, then the non-breaching Party will be entitled to terminate this Agreement and/or any Order Form immediately without any further notice.
7.4 This Agreement terminates automatically, with no further action by either Party, if a receiver is appointed for either Party or its property, either Party makes an assignment for the benefit of its creditors, any proceedings are commenced by, for, or against either Party under any bankruptcy, insolvency, or debtor’s relief law for the purpose of seeking a reorganization of such Party’s debts, and such proceeding is not dismissed within 90 calendar days of its commencement, or either Party is liquidated or dissolved.
7.5 Customer may terminate a Statement of Work, for any reason, upon thirty (30) days prior written notice.
7.6 Upon termination of this Agreement, Customer’s license to use the Service is terminated, and subject to the limited access rights described below, Customer shall immediately cease use of the Service. Termination of this Agreement shall not relieve Customer from its obligations arising hereunder before termination, including but not limited to the responsibility for paying previously accrued Fees. Following any termination of this Agreement, Customer shall have seven (7) calendar days to access the Service solely to retrieve the Customer Data and after such 7-day period, Fluence will have no obligation to maintain or provide any Customer Data and will thereafter delete or destroy all copies of Customer Data within the Service or otherwise within its possession or control, unless legally prohibited.
7.7 The rights and obligations contained in Sections 4 (Intellectual Property Rights, Updates and Usage Rights), 5 (Confidentiality), 6 (Fees and Payment Terms), 8 (Indemnification), 10 (Limitation of Liability), and 11 (General Provisions), and all others that by their sense and context are intended to survive the termination or expiration of this Agreement survive and continue in effect.
SECTION 8: INDEMNIFICATION
8.1 Except to the extent Customer is responsible for indemnifying Fluence under Section 8.2 below and subject to the limitations set forth in Section 8.3 below, Fluence shall defend Customer and its officers, directors, employees and agents (collectively, the “Customer Indemnified Parties”) against any third party claims, suits or actions (a “Claim”) that the Software and/or Service provided by Fluence infringe any United States or Canadian copyright, patent or trademark of a third party in effect as of the Effective Date and shall indemnify and hold the Customer Indemnified Parties harmless from and against any finally adjudicated or settled damages, losses or liabilities, provided that Customer: (i) promptly informs and furnishes Fluence with a copy of such Claim; (ii) gives Fluence all relevant evidence in Customer’s possession, custody or control; and (iii) gives Fluence reasonable assistance in such Claim, at Fluence’s expense, and the sole control of the defense thereof and all negotiations for its compromise or settlement, provided that Fluence shall not compromise or settle any such Claim unless Customer is unconditionally released from all liability. In the event of a Claim against a Customer Indemnified Party, or if Fluence reasonably believes the Software and/or Service may infringe or misappropriate the intellectual property rights of a third party, Fluence may in its discretion and at no cost to Customer (a) modify the Software and/or Service (without materially impairing their functionality) so that they no longer infringe or misappropriate, (b) obtain a license for Customer’s continued use of the Software and/or Service in accordance with this Agreement, or (c) terminate the subscriptions for such Service upon 30 days’ prior written notice and refund any prepaid Fees covering the remainder of the term of such subscription after the effective date of termination.
8.2 Customer shall defend Fluence, and, its parent organizations, subsidiaries, affiliates, officers, directors, employees, and agents (the “Fluence Indemnified Parties”) from and against any and all third party claims, and shall indemnify and hold the Fluence Indemnified Parties harmless against any and all costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) agreed in a settlement by Customer or awarded by a court of competent jurisdiction to the third party claimant where the claim arises out of or in connection with a third party claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; provided in any such case that Fluence (a) gives written notice of the claim promptly to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally releases Fluence of all liability and such settlement does not affect Fluence’s business or Service); (c) provides to Customer all available information and assistance; and (d) has not compromised or settled such claim.
SECTION 9: WARRANTIES AND DISCLAIMERS
- Fluence hereby represents and warrants to Customer as follows: (a) Fluence is duly organized, validly existing, and in good standing under the laws of its own jurisdiction, and this Agreement has been duly authorized by all necessary corporate action. This Agreement is the legal, valid, and binding obligation of Fluence, enforceable against Fluence in accordance with its term. (b) Fluence will comply with all laws, rules, and regulations that are applicable to providing the Software. (c) The Software and/or Service, exclusive of any applications or program code created by or on behalf of Customer, will perform substantially in accordance with the Documentation. If Fluence breaches this warranty, then Customer’s sole and exclusive remedy, and Fluence’s entire liability, is for Fluence to correct or work around the non-conformity within a reasonable period of time (not less than 60 days) after its receipt during the Term of written notice from Customer containing a detailed description of the alleged breach. If Fluence is unable to correct or work around the non-conformity as warranted, then Customer may terminate the affected Software and/or Service and Fluence will refund any prepaid subscription Fees for such Software and/or Service for the period covering the remainder of the Term after the effective date of termination. This Section sets forth Customer’s exclusive rights and remedies (and the sole liability of Fluence) in connection with any defect or other failure of the Software and/or Service to perform in accordance with the Documentation.
9.2 Customer represents, warrants and covenants to Fluence as follows: (i) Customer is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization, and this Agreement has been duly authorized by all necessary corporate (or other entity) action; (ii) this Agreement is the legal, valid, and binding obligation of Customer, enforceable against Customer in accordance with its terms; (iii) Customer owns or has properly licensed all rights in the Customer Data at all times during the Term; (iv) all Customer Data and Customer’s use of the Service does and will comply with all applicable laws, rules and regulations, including Applicable Privacy Laws; and (v) no Customer Data entered into the Service by any User will at any time consist of or contain any personally identifiable information that may be subject to GDPR.
9.3 THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY FLUENCE WITH RESPECT TO THE SERVICE AND ANY PART THEREOF. FLUENCE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. FLUENCE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL OPERATE CONTINUOUSLY OR WILL BE UNINTERRUPTED OR ERROR-FREE. FLUENCE DOES NOT GUARANTEE ANY RESULTS FROM THE SERVICES AND ACCEPTS NO RESPONSIBLITY OR LIABILITY IN RESPECT OF RESULTS OF THE SERVICES.
SECTION 10: LIMITATION OF LIABILITY
10.1 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SUCH PARTY RECEIVED NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY (EXCEPT AND EXPRESSLY STATED HEREIN), WHETHER OR NOT ANY OF THE MATTERS AFORESAID ARISES IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR MISREPRESENTATION OR BREACH OF STATUTORY DUTY OR ANY DUTY UNDER GENERAL LAW OR ANY OTHER LEGAL THEORY.
10.2 EXCEPT FOR ITS INDEMNITY OBLIGATIONS IN SECTION 8, A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 5 AND ANY OF ITS PAYMENT OBLIGATIONS HEREUNDER, THE CUMULATIVE, AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT AND ALL ORDER FORMS AND STATEMENTS OF WORK HEREUNDER WILL NOT EXCEED THE AMOUNTS PAYABLE BY COMPANY TO FLUENCE HEREUNDER FOR THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THESE LIMITS.
SECTION 11: GENERAL PROVISIONS
11.1 Independent Contractors. The relationship between Fluence and Customer has been and will continue to be that of independent contractors. Neither Party is the legal representative, agent, joint venturer, partner, employee, or employer of the other Party under this Agreement for any purpose whatsoever. Neither Party has any right, power, or authority under this Agreement to assume or create any obligation of any kind or to make any representation or warranty on behalf of the other Party, whether express or implied, or to bind the other Party in any respect.
11.2 Assignment. This Agreement may not be assigned by Customer or by operation of law to any other person, persons, firms, or corporations without the express written approval of Fluence, which consent shall not unreasonably be withheld.
11.3 Governing Law. For Customers with a headquarters address located in the United States, the following applies: This Agreement (and the right and obligations of the Parties with respect to their relationship under this Agreement) is governed by and must be construed and enforced in accordance with the laws of the State of Delaware, excluding its conflict of laws rules to the extent such rules would apply the law of another jurisdiction. This Agreement shall be governed without regard to the United Nations Convention on Contracts for the International Sale of Goods and shall exclude the application of the Uniform Computer Information Transactions Act. The Parties hereto consent to the exclusive jurisdiction of all federal and state courts in the State of Delaware. For Customers with a headquarters address located in Canada the following applies: This Agreement (and the right and obligations of the Parties with respect to their relationship under this Agreement) is governed by and must be construed and enforced in accordance with the laws of the Province of Ontario, excluding its conflict of laws rules to the extent such rules would apply the law of another jurisdiction. The Parties hereto consent to the exclusive jurisdiction of all federal and provincial courts in Toronto, Ontario.
11.4 Force Majeure. Except for Customer’s payment obligations, neither Party shall be responsible for delays or failure of performance resulting from acts beyond the reasonable control of such Party. Such acts shall include, but not be limited to, acts of God, strikes, walkouts, riots, acts of war, terrorism, epidemics, failure of suppliers to perform, governmental regulations, power failure, earthquake, or other disasters. If the anticipated or actual delay or non-performance exceeds thirty (30) calendar days, the other Party may immediately terminate the Agreement by giving notice of termination and such termination will be in addition to the other rights and remedies of the terminating Party under the Agreement, at law or in equity.
11.5 Notices: Fluence may give notice by means of a general notice on the Service; electronic mail to Customer’s e-mail address on record in Fluence’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post). Customer may give notice to Fluence (such notice shall be deemed given when received by Fluence) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Fluence at the following addresses: 47 Colborne Street, Suite 200, Toronto, ON M5E 1E3 Canada addressed to the attention of: The Contracts & Legal Department.
11.6 Amendment. Neither this Agreement nor any Order Form or Statement of Work may not be amended, modified, or supplemented orally. This Agreement and any Order Form or Statement of Work may only be amended, modified, or supplemented by an instrument in writing specifically mentioning this Agreement and signed by both of the Parties.
11.7 Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever or to explain, modify, or place any construction on any of the provisions of this Agreement.
11.8 Entire Agreement. This Agreement forms the entire agreement between the parties and supersedes all previous communications, oral or written, and all other communications between them relating to the subject matter hereof. No representations or statements of any kind made by either Party that are not expressly stated herein shall be binding on such Party. No provisions in the Customer’s purchase orders or other business forms will supersede the terms and conditions of this Agreement.
11.9 Waiver. The waiver by either Party of a breach of any provisions of this Agreement by the other Party shall not operate or be construed as a waiver of any subsequent breach by such Party.
11.10 Counterparts. Any Order Form or other document relating to this Agreement may be executed in counterparts, each of which may be original or electronic and shall together constitute one and the same binding instrument.
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