Master Software, Subscriptions and Services Agreement
WHITEOWL is excited to have you as a Client and we look forward to your experience with the WHITEOWL team. This Agreement sets forth the terms and conditions that govern our relationship.
Services and Products
This Agreement shall apply to all Services, Subscriptions, Maintenance and Products (collectively “Solution” or “Solutions”) provided by WHITEOWL to You (“Client”).
WHITEOWL shall be obligated to provide only the software, services and deliverables set forth in any written agreement or Letter of Engagement or Statement of Work (Letter of Engagement or Statement of Work are referred to herein as “SOW”) that is signed by both WHITEOWL and CLIENT. A SOW means a separate written document, prepared by WHITEOWL from time to time, that sets forth, at a minimum, (i) the description of the work to be performed by WHITEOWL, (ii) a list of deliverables, if any, and (iii) the charges for the software or subscription and/or work to be performed by WHITEOWL under the Agreement. If CLIENT desires to initiate changes to the Agreement, it shall submit to WHITEOWL a written request to do so.
All third-party products, solutions, service packs, and fixes will be licensed according to the terms of the license agreements packaged with or otherwise applicable to such product. The CLIENT is exclusively responsible for paying all licenses fees for such products.
As they become available, WHITEOWL will make available new versions (upgrades), updates and/or enhancements to current versions of the Covered Software and its documentation. Some new versions, updates and/or enhancements may require more advanced or larger capacity equipment and/or third party software. Equipment and software compatibility shall be CLIENT’s sole responsibility (excluding WHITEOWL subscriptions).
WHITEOWL warrants that the services will be performed in a professional and workmanlike manner.
WHITEOWL Products will materially perform pursuant to their then-current Documentation.
If CLIENT believes that any Solution does not perform as described in the SOW or other documentation, CLIENT must notify WHITEOWL in writing within thirty (30) days of the occurrence of the problem, and WHITEOWL will use reasonable efforts to repair or replace the Solution without charge. If a service has been improperly performed, CLIENT must notify WHITEOWL in writing within fifteen (15) days of the occurrence of the problem, and WHITEOWL will re-perform the service without charge. The foregoing provides CLIENT’s sole remedy for Solutions or Services that do not comply with CLIENT expectations.
Other than applications made by or on behalf of CLIENT by WHITEOWL using the WHITEOWL Tools and within the scope of a SOW, any modifications that CLIENT makes to WHITEOWL Products will void any warranty obligations set forth in this Agreement as well as any Maintenance.
Except as provided herein, all products and services provided by WHITEOWL are provided as is and WHITEOWL makes no representations or warranties of any kind, express or implied, with respect to any of the products or services provided under this agreement or any SOW, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose.
WHITEOWL expressly disclaims all representations and warranties for non-WHITEOWL products and services, including without limitation, warranty of non-infringement, title, fitness for a particular purpose, or merchantability, whether express, implied, or statutory (by any territory or jurisdiction to the extent permitted by law).
This Agreement is effective as of the date set forth on the signature page below and will continue until terminated in accordance with this Agreement.
For WHITEOWL created software, fees are described in the SOW. All charges, rates and minimums are subject to change by WHITEOWL upon thirty (30) days’ notice. WHITEOWL will invoice CLIENT periodically for all charges which shall be due and payable within 30 days of invoice date. Renewal fees for Maintenance or Subscriptions are calculated annually for a one (1) year period and may be subject to an inflationary adjustment defined at the time of renewal.
Renewal invoices for Subscriptions and Maintenance shall be issued at least thirty (30) days prior to the start of the renewal term. All charges for Maintenance or Subscriptions are payable in advance. Failure to give at least thirty (30) days written notice of intention not to renew the Maintenance or Subscription after the initial contract term will result in automatic renewal and CLIENT will be liable for an additional year’s charges. In the event of a multi-year agreement, CLIENT will be responsible for payment of all years even if CLIENT attempts to cancel the contract before the expiration of the multi-year term. The initial annual Maintenance or Subscription period begins on the 1st day of the next month following the date of your purchase of the Covered Software or Subscription from WHITEOWL.
CLIENTs with an on-premise version of WHITEOWL software are required to have an active and continuous Maintenance Agreement to receive benefits from WHITEOWL. No credit or refunds will be given for partial Subscription or Maintenance periods. Cancellations will become effective as of the final day of the then-current term.
CLIENT shall pay all charges, including, but not limited to, billable travel time and out-of-pocket expenses, in accordance with WHITEOWL's established rates and minimums in effect at the time the services are rendered, or such other rates or amounts as may be specified in an Agreement.
Notwithstanding prepaid charges for Maintenance or Subscriptions, all WHITEOWL invoices which are not paid in 30 days (except for any amounts with respect to which CLIENT notifies WHITEOWL in writing during such 30-day period of a good faith bona dispute) shall bear interest at the rate of 1.5% per month, but not to exceed the maximum rate permitted by law. CLIENT acknowledges and agrees that unless and until such invoice(s) and late charges are paid in full, WHITEOWL reserves the right, without notice, to immediately suspend and/or terminate services and products under this Agreement, in addition to such other remedies it may have at law or in equity including reimbursement of legal costs. All charges and quotes under this Agreement are exclusively in US Dollars. Reinstatement of a lapsed Subscription or Maintenance requires full payment of fees that would have been due from the expiration of the last active term through the reinstatement date.
WHITEOWL looks forward to working with the CLIENT to provide the best products and services possible. CLIENT shall provide WHITEOWL with all information relevant to the services to be performed and shall cooperate and provide WHITEOWL with all assistance as may reasonably be required to perform the services.
Although WHITEOWL will assist CLIENT in implementing and adopting any program provided by WHITEOWL hereunder, CLIENT shall ensure it maintains sufficient human resources to operate the system and that CLIENT’s staff fulfill the responsibilities associated with the programs, including, (a) learning the skills required to operate the system, through the assistance of any training that may be contracted from WHITEOWL, (b) confirmation that all existing data is accurate prior to entry into the system, (c) systematic entry of accurate data throughout use of system, and (d) development of and adherence to written procedures, if any, for use of system.
CLIENT hereby acknowledges that the products and services provided by WHITEOWL will be limited and it shall be the responsibility of CLIENT to ensure that all systems are adequate and operational for CLIENTs purposes. CLIENT hereby acknowledges that WHITEOWL is not responsible in any manner for ensuring that CLIENT’s staff has the appropriate skillset to operate or understand the system. CLIENT is responsible for bringing any questions or concerns that CLIENT has regarding the system or WHITEOWLs services to the direct attention of WHITEOWL in writing. CLIENT is exclusively responsible for ensuring that all data and reporting from the system is accurate and proper for CLIENT’s needs.
CLIENT shall be solely responsible for administering and monitoring the use of login IDs and passwords by its administrators and users. Upon the termination of employment of any such CLIENT administrator or user CLIENT will immediately terminate access by the login ID and password of that individual. Unless WHITEOWL agrees to the contrary in writing, CLIENT is exclusively responsible for backing up, monitoring, and/or securing CLIENT content, and WHITEOWL is not responsible in any manner for loss of CLIENT data (other than data pursuant to a WHITEOWL subscription, which excludes third party backup services and/or solutions provided by WHITEOWL), viruses, ransomware and/or the compromise of CLIENT’s data integrity. CLIENT commits to take commercially reasonable security precautions to prevent unauthorized or fraudulent use of CLIENT Data and Solutions that CLIENT has access to.
The CLIENT acknowledges that WHITEOWL has not been retained to advise the CLIENT with respect to internal controls, and WHITEOWL has not been engaged to monitor CLIENT’s employees or business for theft, forgery, or other unauthorized transfers, or the accuracy of any of the CLIENT’s systems.
Definitions. “Confidential Information” means (i) all information disclosed by one of us (“Owner”) to the other (“Recipient”) electronically, visually, orally or in a tangible form which is either (a) marked as “confidential” (or with a similar legend), (b) is identified at the time of disclosure as being confidential, or (c) should be reasonably understood to be confidential or proprietary; (ii) the terms and/or existence of this agreement and the relationship between the parties, Our architecture, software, data, and technology that comprise the Solutions, Order Form(s), SOW(s), and any proposals or other documents that preceded this agreement; and (iii) donor, prospect and financial information. Recipient shall not obtain any rights, title, or interest in any Confidential Information of Owner. Information generally known to the public, independently developed by Recipient without access to Confidential Information, in the possession of Recipient without an obligation of confidentiality, or information required to be disclosed by court order or applicable law after Owner has been notified shall not be considered Confidential Information if Recipient can provide sufficient evidence of the foregoing.
Treatment of Confidential Information.
Recipient may only (i) use Owner’s Confidential Information to carry out the purposes of this agreement; and (ii) disclose Owner’s Confidential Information to those third parties operating under non-disclosure provisions no less restrictive than those set forth in this agreement and who have a justified business “need to know.” Recipient is responsible for any mistreatment of Confidential Information by such third parties. Recipient must protect Owner’s Confidential Information using the same degree of care it uses to protect its own confidential and proprietary information, but in any case not less than reasonable care, and protect such information in accordance with applicable laws. Upon termination of this agreement, Recipient must return or destroy all Owner Confidential Information in its possession or control, if feasible. If not destroyed, Recipient will continue to protect such information as required above.
Your Ownership and License. CLIENT owns its personal data, its Confidential Information and any artwork, logos, trade names, and trademarks that CLIENT provides to WHITEOWL (“Your Data”). In order for WHITEOWL to provide the Solutions, CLIENT grants to WHITEOWL and its suppliers a nonexclusive, fully paid-up license to use, reproduce, store, modify, and display Your Data. WHITEOWL may aggregate benchmarking results of CLIENT’s use of Solutions with results of other customers’ use, and use and disclose such results for any purpose provided WHITEOWL does not individually identify in connection with same.
WHITEOWL Ownership and License. Subject to CLIENT’s rights to its Data set forth above, WHITEOWL has all right, title, and interest in and to any expressions and results of Solutions, the work, findings, analyses, conclusions, opinions, recommendations, ideas, techniques, know-how, designs, programs, tools, applications, interfaces, enhancements, other technical information, and all derivatives of the foregoing created in connection with this agreement (“Work Product”). WHITEOWL grants to CLIENT a nonexclusive, fully paid-up license to use Work Product, solely to the extent necessary for CLIENT and its end users to use Solutions in accordance with this Agreement. All rights not expressly granted to CLIENT hereunder are reserved by WHITEOWL.
During the Subscription term WHITEOWL shall provide CLIENT with access to the supported version of the Subscription, to be accessed and used by CLIENT through the use of the Internet. WHITEOWL shall provide CLIENT with administrator rights permitting secure administrator access to the Subscription. CLIENT agrees that it has elected to access the WHITEOWL offering through a Subscription and that this Agreement confers no right to convert the Subscription to a License.
Certain WHITEOWL Products may only be used or accessed from CLIENT's computer systems that meet the WHITEOWL system requirements which may be published at our website, and which CLIENT acknowledges it has reviewed.
Suspension; Acceptable Use Policy. WHITEOWL may suspend access to Subscriptions or the provision of Services upon written notice to CLIENT (i) in response to CLIENT's failure to pay when due any undisputed invoices issued pursuant to this Agreement, or (ii) in response to a violation by CLIENT of the acceptable use policy posted on our website.
It takes both of us to protect CLIENT Data and WHITEOWL’s Solutions. WHITEOWL has implemented and will maintain administrative, physical, and technical safeguards designed to: (i) protect against anticipated threats or hazards to the security of CLIENT's Confidential Information, and (ii) protect against unauthorized access to or use of Confidential Information that could materially harm CLIENT. Our technical safeguards include firewalls, virus and intrusion detection, and authentication protocols. In order to continually improve our safeguards, WHITEOWL reserves the right to make changes to the physical and technical safeguards, policies, and data security programs at any time, provided WHITEOWL will at all times maintain commercially reasonable database security procedures and standards. CLIENT and WHITEOWL acknowledge that Solutions may include sending email and publishing web pages over the public Internet using SMTP or HTTP protocols, and that these standard protocols do not support many enhanced data security protections. In no case will the use of the public Internet in this manner be deemed to violate WHITEOWL's obligations under this Agreement. Due to the inherent risks associated with operating information technology systems, WHITEOWL recommends, and CLIENT acknowledges, that CLIENT shall maintain its own cyber liability insurance as well as adequate insurance coverage to cover lost revenue, lost profits and/or loss of data. As such, WHITEOWL will not be liable for any such losses.
Within seventy-two (72) hours of discovery, We will report to You any Security Breach affecting Your Confidential Information. “Security Breach” means unauthorized access, use, disclosure, modification, or destruction of Confidential Information. Security Breaches shall not include: (a) “pings” on an information system firewall; (b) port scans; (c) attempts to log on to an information system or enter a database with an invalid password or user name; (d) denial-of-service attacks that do not result in a server being taken offline; or (e) malware (e.g., a worm or virus) that does not result in unauthorized access, use, disclosure, Modification, or destruction of Your Confidential Information. In the event of a Security Breach, We will use commercially reasonable efforts to mitigate any negative consequences resulting directly from the Security Breach and will use commercially reasonable efforts to implement procedures to prevent the recurrence of a similar Security Breach.
CLIENT shall not: (a) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs in, to or from WHITEOWL Products; (b) interfere with or disrupt the integrity or performance of WHITEOWL Products, or the data contained therein; (c) use WHITEOWL Products in a manner inconsistent with applicable documentation; or (d) attempt to gain unauthorized access to WHITEOWL Products or related systems or networks.
Exclusions from Software Maintenance and Subscription Services
Unless agreed upon by WHITEOWL to the contrary in writing, the following is expressly excluded from the terms of this Agreement: (1) Provision or support of software other than the Licensed Software (e.g., operating systems, office productivity software except for software provided by WHITEOWL for subscriptions), (2) Provision, installation or support of CLIENT hardware equipment (e.g., servers, workstations, scanners, printers, multi-purpose equipment), (3) Professional Services related to the installation of new versions (upgrades), updates and/or enhancements to the current version of CLIENT's software unless provided by WHITEOWL for subscribers, (4)Troubleshooting malfunctions, training or required re-application of functionality (upgrade of modifications) related to customized Software Modification(s) made by WHITEOWL, unless covered under a specific Maintenance Plan or SOW for such modification(s), (5) Responding to Training inquiries, (6) All work on data conversion and/or data migration assistance from 3rd party system(s) into WHITEOWL products, (7) Repair of the Licensed Software if the failure is related to: (a)The equipment or supplies CLIENT is using, (b) Misuse or neglect of the Licensed Software by CLIENT, (c) Anyone other than a member of WHITEOWL's staff making any alteration to the Licensed Software or to the system files which may affect the Licensed Software, (d) CLIENT's environmental conditions, including, but not limited to, insufficient, excessive, or irregular electrical power, failure of air conditioning, excessive heat or humidity, flood, water, wind or lightning, (e) Use of the Licensed Software for purposes other than those for which it was expressly designed, (f) The relocation or reinstallation of the Licensed Software, and/or (g) the use of any software other than the Licensed Software.
WHITEOWL has no obligation to perform support services and furthermore reserves the right to charge additional support fees at its then standard rates for services performed in connection with reported incidents that are later determined to have been due to: (a) hardware, software or services not supplied by WHITEOWL, and/or (b) not following recommendations from WHITEOWL (e.g., instructions related to the migration to a new version of the Licensed Software). If WHITEOWL has been engaged by CLIENT to install, maintain or upgrade a thirdparty program, CLIENT acknowledges that WHITEOWL is not the author, developer or seller of such program, but instead has been retained by CLIENT solely to install, maintain or upgrade such program in CLIENT's current computing environment based upon the representations of the CLIENT. As such, CLIENT agrees that WHITEOWL shall not be liable for any defects, flaws, programming errors, inefficiencies or malfunctions in any such third-party program, or for any nonperformance of the third-party program.
Non-Solicitation of Employees
During the term of this Agreement and for a two-year period thereafter, CLIENT shall not directly or indirectly, solicit or accept for employment or for engagement as an independent contractor, or encourage to leave their employment or engagement, any employee or independent contractor of WHITEOWL. In the event that CLIENT breaches this provision resulting in WHITEOWL losing the services of an employee or independent contractor, CLIENT shall pay to WHITEOWL an amount equal to 100% of the most recent annual rate of compensation of the employee or independent contractor, payable upon the date of employment and/or engagement.
WHITEOWL makes no estimate of cost or completion date other than as may be set forth in an SOW. CLIENT understands that any such estimate is provided only as a good-faith approximation based on information furnished to WHITEOWL by CLIENT. WHITEOWL will update its estimates at CLIENT's reasonable request.
Limitation of Liability
WHITEOWL shall have no liability under this Agreement with respect to: (i) customizations created by or on behalf of CLIENT without WHITEOWL assistance; (ii) use of WHITEOWL Products by or on behalf of CLIENT other than in accordance with this Agreement and the documentation; (iii) combination use, failures or incompatibility caused by third party software or hardware; (iv) modifications to WHITEOWL Products other than those contemplated in this Agreement; (v) CLIENT's failure to timely install updates to WHITEOWL Products; or (vi) compliance with designs, plans or specifications furnished by or on behalf of CLIENT.
In the event CLIENT assigns, licenses, sublicenses, resells, transfers, or reuses for the benefit of any third party any program, application, or other deliverable provided by WHITEOWL to CLIENT, WHITEOWL shall have no responsibility to such third party for any defects, flaws, programming errors, inefficiencies, or malfunctions therein experienced by such third party, and CLIENT shall fully defend and indemnify WHITEOWL against any claims, losses, liabilities, awards, costs (including attorneys' fees) or expenses asserted by such third party.
WHITEOWL shall not be liable for: (1) any consequential, incidental, special or punitive damages (including, without limitation, lost revenue, lost profits or loss of data), even if advised of the possibility of such damages, or (2) acts of negligence unless it is also proven to an arbitration panel that WHITEOWL was an intentional wrongdoer in accordance with Florida law. Notwithstanding anything contained herein to the contrary, WHITEOWL's total liability to CLIENT under this agreement from all causes of action and under all theories of liability will be limited to the greater of (a) payments actually received from CLIENT under this agreement during the six (6) month period preceding the date a claim for liability arises hereunder or (b) $25,000. The parties agree to the mutual allocation of risk set forth herein, and the parties agree that this stipulated amount is reasonable and any amount of damages sustained in connection with this agreement are not currently ascertainable.
Each Party shall fully indemnity and defend the other Party against any third-party claims arising from the indemnifying Party's negligence or willful misconduct, unless claims of negligence or willful misconduct are directed by the third party to both the CLIENT and WHITEOWL.
No action, regardless of form, relating to or arising out of the services under this Agreement may be brought by either party more than one (1) year after the date of completion of the services, except that an action by WHITEOWL for nonpayment may be brought at any time consistent with applicable law.
Neither party will be liable to the other party for any loss or damage resulting from any delay or failure to perform all or any part of this Agreement, except for failure to pay monies due, if such delay or failure is caused by circumstances constituting force majeure. Such circumstances include acts of God, strikes, lockouts, riots, acts of war, acts of violence, acts of terror, earthquakes, floods, windstorms, fire and explosions.
During the performance of any services for CLIENT pursuant to this Agreement, WHITEOWL shall maintain at its expense, for itself and its employees, workers' compensation and unemployment insurance as required by law, and liability insurance covering its employees while on CLIENT's premises, in reasonable amounts determined by WHITEOWL. WHITEOWL shall provide CLIENT with certification of the foregoing insurance upon CLIENT's reasonable request.
Each party represents and warrants to the other party that (i) it has the right to enter into this Agreement and perform its obligations hereunder; (ii) it is organized under the laws of its jurisdiction in a corporate or equivalent form; (iii) to the best of its knowledge there are no claims, actions or proceedings against it (including without limitation bankruptcy, dissolution, liquidation, or any assignments for the benefit of creditors) that would impair its ability to honor all legal obligations hereunder; (iv) the person executing this Agreement on its behalf has been authorized to do so; (v) the Agreement constitutes valid, legal and binding obligations enforceable in accordance with their terms, (vi) it was afforded the opportunity to consult with legal counsel in connection with the Agreement, and (vii) the terms of this Agreement represent the entire agreement between the parties hereto concerning the subject matter of this Agreement and supersedes any and all prior oral or written statements , agreements, quotations, and negotiations regarding the subject matter within this Agreement. This Agreement cannot be altered, amended, or modified except in writing executed by an authorized representative of each party. The parties hereto are independent of each other, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party. In the event of any conflict between the terms of this Agreement and the terms of a SOW, the terms of this Agreement shall take precedence over the terms of the SOW, unless explicitly stated to the contrary in the SOW.
Upon the occurrence of an event of default of any of the terms hereof, the party claiming the default shall give the defaulting party written notice specifying the conditions of default and the actions necessary to cure such default, and provide a reasonable opportunity to cure such default. If the defaulting party fails to cure the default or provide a plan for curing the default within 30 business days after such notice is given, the party claiming the default may assert such remedies as may be available at law or in equity, except as limited by the terms of this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to or application of Florida’s conflicts of law principles.
Neither party may assign any of its rights, obligations, or privileges under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, however, either may assign this Agreement in connection with a merger, acquisition, corporate reorganization or the like. Any attempted assignment in violation of this section shall be void.
The CLIENT hereby agrees that WHITEOWL may use CLIENT's name in describing, advertising, or promoting WHITEOWL's services as a part of WHITEOWL's website, marketing material, or other documents listing WHITEOWL's qualifications, experience, and companies with whom WHITEOWL has provided consulting services.
Disputes and claims arising out of this Agreement first will be submitted to senior management of both Parties for amicable resolution. If the Parties cannot settle the matter within forty-five (45) days from the initial notice of dispute or claim, the dispute or claim shall be submitted to and resolved exclusively by arbitration conducted in accordance with Commercial American Arbitration Association rules, which shall occur in Miami-Dade County, Florida. Such arbitration shall be conducted before a panel of three persons, one chosen by each party, and the third selected by the two party-selected arbitrators. Any decision in arbitration shall be final and binding upon the Parties. Judgment may be entered thereon in any court of competent jurisdiction. In the event of a dispute in connection with any services rendered under this agreement, the prevailing party as defined by an arbitration panel or Court of law, shall be entitled to recover its reasonable attorneys’ fees and costs expended in relation to the dispute.
Any notices required or permitted to be given hereunder shall be deemed given and served in accordance with the provisions of this Agreement if delivered personally to the receiving party, or if deposited in the United States mail, postage prepaid, return receipt requested, and addressed to the receiving party at the address which appears herein.
If any provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, such determination will not affect the validity or enforceability of any other provision of this Agreement.
“AUP” means WHITEOWL's acceptable use policy located at https://www.GoWhiteOwl.com, as updated from time to time by WHITEOWL.
“WHITEOWL”, “Our”, and “We” mean WHITEOWL and its affiliates and subsidiaries.
“Documentation” means applicable manuals and documentation that WHITEOWL generally provides or makes available for Solutions.
“Effective Date” means the date of Your signature on the Order Form.
“Order Form” means the WHITEOWL order form signed by You (electronically or otherwise) and accepted by WHITEOWL setting forth the Solutions You have ordered.
“Services” means services provided by WHITEOWL other than Software or Subscriptions that are pursuant to an Order Form (and SOW if applicable) and may include professional, consulting, or training services.
“Solutions” means Subscriptions, Software and Services collectively.
“Subscription” means any WHITEOWL subscriptions, including maintenance, support, application services and payment services provided by WHITEOWL pursuant to an Order Form.
“System Requirements” means the requirements set forth at https://www.GoWhiteOwl.com, as updated from time to time by WHITEOWL.
“Us” means WHITEOWL and You collectively.
“You” and “Your” mean the CLIENT set forth on the Order Form.