Master Subscription & Licensing Agreement
As part of the Service, VAM dB, MSCC Corp will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the MSCC website incorporated by reference herein, including but not limited to MSCC's privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.
1. Privacy, Security & Disclosure
MSCC's privacy and security policies may be viewed at www.vamdb.com/privacy. MSCC reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Note that because the Service is a hosted, online application, MSCC occasionally may need to notify all users of the Service (whether or not they have opted out of receiving emails) of important announcements regarding the operation of the Service. If you become a paying customer of the Service, you agree that MSCC can disclose the fact that you are a paying customer.
2. Grant of License.
MSCC hereby grants, and the Customer accepts, a nonexclusive, license to use the Software in object code form and to access the System for Customer's internal business purposes during the Term of this agreement. The Customer shall not make copies of the System, the Software, the Documentation or any portion of the foregoing, nor shall Customer re-sell, loan, rent, pledge, assign, sub-license or otherwise transfer any of the foregoing except as otherwise expressly permitted pursuant to Section 17 hereof. The Customer may not create internet links or frame any content. The Customer may not use, download, save, modify, or distribute any of the System information, content, or interface screens except as otherwise provided in this Agreement. The Customer may not build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses 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. This is not a license to use any portion of the Software in source code form for any purpose. Customer acknowledges that MSCC has a valuable proprietary interest in the Software and related Documentation. Customer will not or be party to any attempt to disassemble, reverse engineer, decompile, use or obtain source code, develop any derivative works, or make any attempts to duplicate the software for personal use or for sale. This shall survive the termination of this agreement as defined in section 20. The Software is designed for use by insurance agents, brokers, and agencies for use with their employees. It is not intended for use for consulting companies or for use by anyone not directly employed by the Customer without written authorization. The Customer may use the Service only for your 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 violative of 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. MSCC and its licensors make no representation that the Service is appropriate or available for use in locations other than the United States of America. If you use the Service from outside the United States of America you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited.
3. Customer Responsibilities.
The Customer is responsible for all activity occurring under your User accounts, shall abide by all applicable local, state, national laws and the terms of this agreement and conditions posted at MSCC's web site, which may be changed as needed. The customer will also provide an authorized contact person who will coordinate communication and make decisions during the implementation process, and post-implementation. The Customer will notify MSCC immediately of any unauthorized use, suspected breach of security or any copying or distribution of Content that is known or suspected by you or your Users. You agree to provide MSCC with complete and contact information. This information includes your legal name, street address, e-mail address, and telephone number. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, MSCC reserves the right to terminate your access to the Service and Customer Data.
4. Customer Data
MSCC does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not MSCC, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and MSCC shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), MSCC will make available upon request to you a file of the basic Customer Data (not all reference data will be exported, including but not limited to email, follow ups, groups etc.) within 7 days of termination if you so request at the time of termination. MSCC reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and MSCC shall have no obligation to maintain or forward any Customer Data.
5. Intellectual Property Ownership
MSCC alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the MSCC Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the MSCC Technology or the Intellectual Property Rights owned by MSCC. The MSCC name, the MSCC logo, and the product names associated with the Service are trademarks of MSCC or third parties, and no right or license is granted to use them.
6. Third Party Interactions
During use of the Service, you may correspond with, purchase or order services from other third parties through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. MSCC and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. MSCC does not endorse any sites on the Internet that are linked through the Service. MSCC provides these links to you only as a matter of convenience, and in no event shall MSCC or its licensors be responsible for any content, products, or other materials on or available from such sites. MSCC provides the Service to you pursuant to the terms and conditions of this Agreement.
7. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The charges will be equal to the maximum number of total User licenses during the current billing period and any additional modules or fees requested or installed. Payments may be made annually, monthly, or quarterly, consistent with the Initial Term, or as otherwise mutually agreed upon. An authorized License Administrator may add licenses by executing an additional written Order Form or using the Online Order Center. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. MSCC reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
8. Data Storage Fees and Bandwidth
The maximum disk storage space provided to you at no additional charge is dependant on the version of the database purchased. If the amount of disk storage or exceeds this limit, you will be required to accept additional charges for storage unless you reduce the amount of space used. MSCC reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
9. Billing and Renewal
MSCC charges and collects in advance for use of the Service. MSCC will automatically renew and bill your credit card or issue an invoice to you (a) every month for monthly licenses, (b) every quarter for quarterly licenses, (c) each year on the subsequent anniversary for annual licenses, or (d) as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of total User licenses times the license fee in effect during the prior term, unless MSCC has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter, and any additional modules requested or installed. Fees for other services will be charged on an as-quoted basis. MSCC's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on MSCC's income.
You agree to provide MSCC with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, MSCC reserves the right to terminate your access to the Service in addition to any other legal remedies.
If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
10. Non-Payment and Suspension
In addition to any other rights granted to MSCC herein, MSCC reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or MSCC initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that MSCC may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
MSCC reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that MSCC has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
11.(a) Termination upon Expiration
The Service is monthly and can be cancelled online at any time through the Service. There are no refunds, pro-rated charges, if you cancel you will have access until your next billing date. In the event this Agreement is terminated (other than by reason of your breach), MSCC will make available to you a file of the basic Customer Data (not all reference data will be exported, including but not limited to email and follow ups) within 30 days of termination if you so request at the time of termination. You agree and acknowledge that MSCC has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
11.(b) Termination for Cause
Any breach of your payment obligations or unauthorized use of the MSCC Technology or Service will be deemed a material breach of this Agreement. MSCC, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, MSCC may terminate a free account at any time in its sole discretion. You agree and acknowledge that MSCC has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
12. Mutual Indemnification
12.(a) You shall indemnify and hold MSCC, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that MSCC (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release MSCC of all liability and such settlement does not affect MSCC's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
12.(b) MSCC shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by MSCC of its representations or warranties; or (iii) a claim arising from breach of this Agreement by MSCC; provided that you (a) promptly give written notice of the claim to MSCC; (b) give MSCC sole control of the defense and settlement of the claim (provided that MSCC may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to MSCC all available information and assistance; and (d) have not compromised or settled such claim. MSCC shall have no indemnification obligation, and you shall indemnify MSCC pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
13. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. MSCC represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online MSCC help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
14. Disclaimer of Warranties
MSCC AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. MSCC AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. THE QUOTES PRODUCED IN THE QUOTING MODULE ARE PROVIDED BY A THIRD PARTY COMPANY AND PROVIDED AS-IS WITH NO IMPLIED GUARANTEE TO THEIR ACCURACY. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY MSCC AND ITS LICENSORS.
15. Internet Delays
MSCC'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MSCC IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
16. Limitation of Liability
IN NO EVENT SHALL MSCC'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL MSCC'S AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
MSCC may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in MSCC's account information, or by written communication sent by first class mail or pre-paid post to your address on record in MSCC's account information. 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) or 12 hours after sending (if sent by email). You may give notice to MSCC (such notice shall be deemed given when received by MSCC) at any time by letter delivered to MSCC at the following addresses: MSCC Corp., PO Box 68638, Schaumburg, IL 60168.
18. Modification to Terms
MSCC reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
19. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of MSCC but may be assigned without your consent by MSCC to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of MSCC directly or indirectly owning or controlling 50% or more of you shall entitle MSCC to terminate this Agreement for cause immediately upon written notice.
This Agreement shall be governed by Illinois law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Illinois. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and MSCC as a result of this agreement or use of the Service. The failure of MSCC to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by MSCC in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and MSCC and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.