Last updated: August 14, 2018
MASTER CUSTOMER AGREEMENT
This Master Customer Agreement(the “Agreement”) is between Advanced Technology Group, Inc. (“ATG”, “We”, “Us” or “Our”) and the entity identified in the applicable Order Form (“You” or “Your”). ATG and You are each a “Party” and together are the “Parties” to this Agreement.
BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; BY USING THE SERVICES; OR BY OTHERWISE ACCEPTING THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE TERMS “YOU” OR “YOUR” SHALL REFER TO THE ENTITY IDENTIFIED IN THE APPLICABLE ORDER FORM AND ITS AFFILIATES. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement sets forth the terms and conditions that governs Your use of the Services.
Your use of the Services may also be subject to the following agreements (collectively, the “Supplemental Agreements”), as applicable:
- C3 On Premise License Agreement, available at https://atgonline.com/c3-on-premise-license-agreement/
- C3 SaaS License Agreement, available at https://atgonline.com/c3-saas-license-agreement/
- TownSq SaaS License Agreement, available at https://atgonline.com/townsq-saas-license-agreement/
- ATG Pay Agreement, available at https://atgonline.com/pay-agreement/
- API License Agreement, available at https://atgonline.com/api-license-agreement/
- Off-Site Backup Agreement, available at https://atgonline.com/off-site-backup-agreement/
- “Affiliate” means as to an entity, any other entity that, directly or indirectly, is controlled by, is under common control with or controls such entity, but only as long as such control exists. For purposes of this definition, “control” means the ownership, directly or indirectly, of at least 50% of the total voting or equity interests of the entity.
- “Authorized User” means an individual, HOA or other user authorized by You to access and use a Service.
- “Feedback” means any suggestion, enhancement request, recommendation, correction or other feedback provided by You to Us relating to the Services.
- “Fees” means the fees chargeable to You by Us for access to and use of the Services as set forth in the applicable Order Form.
- “Harmful Code” means any software, hardware or other technologies, devices, or means, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner, any (i) computer, software, firmware, hardware, system or network, or (ii) any application or function of any of the foregoing or the integrity, use, or operation of any data processed thereby; or (b) prevent Us or any other user from accessing or using the Services as intended by this Agreement, and includes any virus, bug, Trojan horse, worm, backdoor, or other malicious computer code and any time bomb or drop-dead device.
- “Intellectual Property Rights” means all intellectual property rights and other industrial or other similar proprietary rights in any jurisdiction worldwide, whether registered or unregistered or under common law, including such rights in and to: (a) trademarks, trade names, services marks, trade dress and all other indicia of origin, including all registrations and applications of the foregoing and goodwill associated with any of the foregoing; (b) copyrights, works of authorship and all other copyrightable works, including all registrations, applications or renewals of the foregoing; (c) trade secrets, methodologies, techniques, know-how and any other information which provides value or a competitive advantage and is not publically known; (d) inventions, ideas discoveries, developments, whether patentable or not, and any issued patents or pending patent applications, including any divisionals, continuations, continuations-in-part, reissues, reexaminations and extensions thereof and any counterparts claiming priority anywhere in the world.
- “Open Source Software” means all software licensed under a license approved by the Open Source Initiative and listed at http://www.opensource.org/licenses/, including, without limitation the GNU General Public License, the GNU Lesser Public License, the Mozilla License, the Eclipse License, the Common Public License, the Artistic License, the BSD License, the Apache License, or any license that is similar to such licenses.
- “Order Form” means an order form that references this Agreement and is executed by both Parties.
- “Services” means any application, software, content or services provided by ATG pursuant to an Order Form.
- “Third-Party Content” means any information, data, material or other content that is made available to You by a third party through Our site or in connection with the Services.
- “Your Content” means any information, data, material or other content that You or Your Authorized Users upload, transmit or otherwise provide to Us.
- Services. During the Term, We will provide You the Services in accordance with the applicable Order Forms.
- Restrictions on Use. You shall not, shall not permit any other person to, and shall ensure Authorized Users will not: (1) disassemble, decompile, reverse engineer, modify, copy, translate or create derivative works of the Services or any component or part thereof; (2) use the Services to store or transmit any of Your Content that is libelous, tortious, unlawful or that infringes or otherwise violates the Intellectual Property Rights or privacy rights of a third party; (3) make the Services available to anyone other than Your Authorized Users; (4) sell, resell, license, sublicense, distribute, make available, loan, rent or lease the Services; (5) use the Services to provide services to third parties (e.g., service bureau or outsourcing); (6) circumvent, endanger, disrupt or interfere with the operation, security or integrity of the Services; (7) use the Services to store or transmit Harmful Code or introduce such Harmful Code into the Services; (8) attempt to gain unauthorized access to the Services or its related systems or networks; (9) attempt or permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit; (10) perform or disclose any benchmark or performance tests of the Services; (11) remove, alter or obscure any proprietary notices or markings from ATG or its licensors; (12) use any software components other than those specifically identified in the applicable Order Form, even if it is technically possible to access other software components; (13) use the Services to build or develop any similar or competing product or service; or (14) use the Services in any way to harass, menace, or cause damage or injury to any person or property, including but not limited to transmitting any material that is false, defamatory or obscene or constitutes unsolicited bulk-email or spam.
- Changes. We may modify, remove or discontinue any of the Services, or the functionality thereof, from time to time in our sole discretion without any liability or notice to You. We do not guarantee the availability of any features, functionality or interoperability of the Services.
- Your Responsibilities.
- You will use best efforts to prevent unauthorized access or use of the Services.You will promptly notify Us if You become aware of any unauthorized access or use of the Services or any other known or suspected breach of security. You are liable and responsible for Your Authorized Users’ compliance with this Agreement, the applicable Supplemental Agreements and the applicable Order Forms. If Your Authorized User violates this Agreement, You will immediately suspend access to the Services for such Authorized User.
- You are responsible for any accessibility requirements to use the Services, including but not limited to obtaining compatible software, hardware and internet access.
- We have no obligation to provide any updates or upgrades, including but not limited to any enhancements or bug fixes or new versions of the Services. Where We make any updates or upgrades available to You, You shall promptly implement any such updates or upgrades. We are not responsible for any Losses You incur relating to Your failure to timely implement any update or upgrade.
- You will use best efforts to provide Us with any information and assistance necessary to enable Us to provide the Services. You acknowledge that Our ability to deliver the Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.
- You shall pay all Fees to Us within thirty (30) days of the date of the applicable invoice.If any amount remains outstanding after such 30-day period, the outstanding amounts shall accrue a late interest at a rate of 1.5% per month. Unless otherwise set forth in the applicable Order Form, all payments shall be in U.S. Dollars.
- We shall have the right to suspend Your access to and use of the Services until You have paid all outstanding amounts in full.
- Except as otherwise stated in this Agreement or an applicable Order Form, any Fees paid to Us are non-refundable and any Order Forms accepted by Us are non-cancelable by You.You have no right to set off any of Your payments against any amount due from Us to You. We may set off Our payments against any amount due from You to Us.
- Fees are exclusive of any sales, value-added, use and excise or similar taxes imposed by applicable law, and You shall be responsible for all such taxes related to the Services, except for taxes based on Our income.
- Our Ownership. We and our licensors shall retain sole and exclusive ownership of all right, title and interest in and to the Services, any improvements, modifications or derivative works thereof, and all Intellectual Property Rights in any of the foregoing. Except as expressly set forth in this Agreement, the Supplemental Agreements and the Order Forms, no rights in the Services are granted to You. We may (a) collect statistical and other information related to the performance, operation and use of the Services; and (b) use data from the Services for any purpose, including but not limited to security and operations management, to create statistical analyses, and research and development purposes (any data collected under (a) and any resulting, derived, discovered, created or developed data or materials from (b), collectively, the “Analysis”). We shall retain sole and exclusive ownership of all right, title and interest in and to the Analysis, any improvements, modifications or derivative works thereof, and all Intellectual Property Rights in any of the foregoing.
- Your Ownership. Subject to the rights and licenses granted to Us under this Agreement, You shall retain sole and exclusive ownership of all right, title and interest in and to Your Content and all Intellectual Property Rights therein.
- License Grant. You hereby grant and agree to grant Us a non-exclusive, sublicensable, royalty-free, irrevocable, perpetual right and license to access, use, store, copy, configure, perform, display and transmit any of Your Content for purposes of providing the Services, improving the Services, developing new products and services and enforcing Our rights under this Agreement, the Supplemental Agreements and any Order Form.
- Feedback.Any Feedback provided by You, including all Intellectual Property Rights therein, shall become Our sole and exclusive property. You hereby irrevocably assign and agree to assign to Us all right, title, and interest in and to the Feedback and agree to provide Us any assistance We require to document, perfect and maintain our rights in the Feedback.
- Non-Exclusive Basis. You agree that the Services are provided to You on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Our ability to provide the Services, including any custom feature or functionality developed for You, to any other person or entity. We are free to use any general knowledge, ideas, methodologies, techniques, skills or know-how We acquire from providing the Services for any purpose.
- Covenant Not to Assert. You covenant, on behalf of Yourself, Your Affiliates and Your successors and assigns, not to assert any claims of ownership to, or the invalidity, infringement or unenforceability of the Services.
- Definition. “Confidential Information” means all information disclosed by Us to You, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information includes, but is not limited to, the Services, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed to You. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to Us, (ii) was known to You prior to the disclosure by Us without breach of any obligation owed to Us, (iii) is received from a third party without breach of any obligation owed to Us, or (iv) was independently developed by You without use or reference to Confidential Information.
- Prohibition on Use and Disclosure. You will safeguard Confidential Information using the same degree of care that You use to protect Your own confidential information of like kind (but in no event less than a reasonable degree of care). You shall not use any Confidential Information for any purpose other than performance of Your obligations under this Agreement except as authorized by the Us in writing. You shall not transfer, display, convey, permit access to or otherwise disclose or make available Confidential Information to any person or entity except as authorized by the Us in writing.
- Mandatory Disclosure. You may disclose Confidential Information in response to a valid court order or as required by applicable law; provided however, that You (a) promptly notify Us of the required disclosure such that We will have a reasonable opportunity to obtain a protective order; (b) comply with Our directions with respect to such disclosure; and (c) cooperate with and assist Us in any attempt to limit or prevent the disclosure of the Confidential Information.
- Return of Confidential Information. Upon Our request or upon termination of this Agreement, You shall, at Your own expense, promptly return or destroy all Confidential Information, and, upon Our request, provide Us with certification of such destruction.
- Representations & Warranties. You represent and warrant that: (1) You have obtained all necessary rights and consents to perform Your obligations under this Agreement; (2) Your Content does not and will not infringe, misappropriate or otherwise violate the Intellectual Property Rights or privacy rights of any person; (3) You will not introduce any Harmful Code through Your use of the Services and Your Content does not contain any Harmful Code; (4) You have full power and authority to enter into this Agreement; (5) the execution and performance of this Agreement shall not conflict with, result in or constitute any breach of or default under any other agreement or obligation to which You are bound; and (6) You shall comply with all applicable laws.
- Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES AND ANY OTHER MATERIALS ARE PROVIDED “AS IS” AND WE, OUR AFFILIATES AND OUR RESPECTIVE SUBCONTRACTORS DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND WITHOUT LIMITING THE FOREGOING, SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, OR THAT THE SERVICES WILL BE ERROR-FREE, SECURE, ACCURATE, COMPLETE, COMPATIBLE WITH ANY SOFTWARE OR SYSTEM, OR FREE FROM HARMFUL CODE.
- Open Source Software. The Services may contain Open Source Software governed by separate terms and conditions under the applicable Open Source Software license. You are solely responsible for Your compliance with such terms and conditions.
- Limitation of Liability.
- IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, DATA, PRODUCTIVITY, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- IN NO EVENT SHALL OUR AGGREGATE LIABILITY, TOGETHER WITH OUR AFFILIATES, ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE LESSER OF (a) THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES UNDER THE APPLICABLE ORDER FORM GIVING RISE TO THE LIABILITY IN THE THREE (3) MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO THE CLAIM; (b) 25% OF THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES UNDER THE APPLICABLE ORDER FORM; OR (c) $1,000. ANY CLAIM BY YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE FIRST INCIDENT GIVING RISE TO THE CLAIM.
- Indemnificiation. You agree to indemnify, defend and hold harmless, Us, Our Affiliates, and each of Our and Our Affiliates’ respective officers,shareholders, directors, employees, agents, subcontractors, and successors and assigns (each, an “ATG Indemnitee”) from and against any and all losses, damages, liabilities, judgments, awards, penalties, interest, fines, costs and fees or any other expenses of whatever kind (including reasonable attorneys’ fees) (“Losses”), incurred by an ATG Indemnitee as a result of any third-party claim, demand, suit, action, investigation, allegation or any other proceeding (“Claim”) made in connection with, arising out of or otherwise related to, directly or indirectly: (1) physical injury to or death of any person or damage to tangible property caused by Your act or omission; (2) Your breach of this Agreement, the applicable Supplemental Agreements or any Order Form; (3) any infringement, misappropriation or violation of any Intellectual Property Right or privacy right by Your Content or Your use of the Services, other than as expressly permitted under this Agreement; (4) You or Your Authorized Users’ failure to comply with any laws; (5) any dispute with Your Authorized Users; or (6) any Claim brought against an ATG Indemnitee by any of Your employees, agents, subcontractors or Affiliates.
- Term. This Agreement is effective upon Your acceptance and shall remain in effect until the expiration or termination of all Order Forms, unless terminated earlier (“Term”).
- Termination. We may terminate this Agreement and any Supplemental Agreement or Order Form, in whole or in part, for any reason at any time upon seven (7) days’ written notice to You. Termination of an Order Form will not affect other Order Forms. Upon the termination or expiration of this Agreement: (1) all Supplemental Agreements and Order Forms and the rights and licenses granted therein shall terminate and You and Your Authorized Users shall immediately cease all use of the Services; (2) You shall promptly, but in no event later than thirty (30) days, return or upon Our request, destroy and certify the destruction of all Confidential Information; and (3) You shall pay Us all outstanding Fees within thirty (30) days of such termination or expiration.
- Suspension. We may suspend Your or Your Authorized Users’ access to or use of the Services if We reasonably believe that You or any of Your Authorized Users have violated the terms of this Agreement, the applicable Supplemental Agreement or the applicable Order Form, You are delinquent in Your payment of Fees, or You or any of Your Authorized Users pose a risk to the security or operation of the Services or Our systems. We will notify You of the suspension and use commercially reasonable efforts to re-establish Your access or use once such violation has been cured to Our satisfaction.
- Third-Party Content. We may make available Third-Party Content in connection with the Services. Third-Party Content may be governed by separate terms and conditions, which may include separate fees and charges. Any Third-Party Content is made available on an “as is” and “as available” basis without warranty of any kind. We have no responsibility or liability with respect to any Third-Party Content and do not guarantee its availability or accuracy.
- Audit. We may audit Your use of the Services to determine whether Your use of the Services is in compliance with this Agreement, the applicable Supplemental Agreements and the applicable Order Forms. You agree to cooperate with Our audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations. You agree to pay Us within thirty (30) days of written notification any Fees applicable to Your use of the Services in excess of Your rights. You agree that We shall not be responsible for any of Your costs incurred in cooperating with the audit.
- Order of Precedence. In the event of any conflict or inconsistency between the terms and conditions of this Agreement, the Supplemental Agreements or any Order Form, the following order of precedence will apply: (1) the applicable Order Form, (2) the applicable Supplemental Agreement, and (3) this Agreement.
- Assignment. You may not assign this Agreement, any Supplemental Agreement or any Order Form, in whole or in part, whether by operation of law or otherwise, without Our prior written consent. We may assign this Agreement, any Supplemental Agreement and any Order Form, in whole or in part, without Your consent at any time. Any assignment in violation of this Section shall be null and void. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the Parties and their respective successors and assigns.
- Force Majeure. We shall not be liable or responsible to You, or considered in default or breach of this Agreement for any delay or failure to perform any obligation under this Agreement, where the delay or failure results from any cause beyond Our reasonable control, including but not limited to, acts of God, labor disputes or other industrial disturbances, disruption of supply, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war (each, a “Force Majeure Event”). We and You will use reasonable efforts to mitigate the effects of a Force Majeure Event. A Force Majeure Event will not excuse Your obligations under Section 6.
- Export Laws. Export laws and regulations of the United States and other jurisdictions may apply to the Services. You agree that such export laws govern Your use of the Services, and You agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations).
- Compliance with Laws. You shall comply, and shall ensure that Your Authorized Users comply, with all applicable international, federal, state, and local laws, rules, including applicable customer protection rules promulgated by applicable regulatory agencies, decrees, orders, regulations, by-laws, ordinances and codes in connection with this Agreement, including but not limited to, privacy laws, intellectual property laws, and anti-spam laws.
- Governing Law. This Agreement is governed by and shall be construed in accordance with laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Texas. The Parties mutually consent to the jurisdiction of the federal and state courts in Dallas County, Texas.
- Dispute Resolution. The Parties agree to attempt to resolve any disputes in good faith. Any dispute that arises out of or relates to this Agreement that cannot be resolved by the Parties shall be resolved by binding confidential arbitration, which shall be conducted in Dallas, Texas in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration shall be conducted by a panel of three neutral arbitrators who are independent and disinterested with respect to the Parties, the Agreement, and the outcome of the arbitration. Each Party shall appoint one neutral arbitrator, and these two arbitrators so selected by the Parties shall then select the third arbitrator, and all arbitrators must have at least five (5) years’ experience in mediating or arbitrating cases regarding the same or substantially similar subject matter as the dispute between the Parties. The determination of the arbitrators shall be binding upon the Parties. Each Party shall bear its own costs and expenses in connection with the arbitration. Where permitted by applicable law, You agree that You may only bring Claims against Us in Your individual capacity and not as a plaintiff or class member in any purported class or representative capacity.
- Notice to Us shall be in writing and shall be deemed to have been given if delivered personally, or three days after mailing by certified mail (return receipt requested) or overnight carrier to:
Advanced Technology Group, Inc.
Attn: Legal Department
PO Box 600223
Dallas, Texas 75360-0223
- We may give You notice in writing delivered electronically (including by email to Your email address on record) or by facsimile, delivered to Your address on record or by posting a general notice on Our site or within the Services. You are responsible for keeping Your email address, telephone number and mailing address up to date.
- Notice to Us shall be in writing and shall be deemed to have been given if delivered personally, or three days after mailing by certified mail (return receipt requested) or overnight carrier to:
- Publicity. No information or communication relating to this Agreement will be released for publication, advertising or any other purpose without Our prior written approval. Unless authorized by Us in writing, You are expressly prohibited from using Our name, logo or any other trademarks or service marks in any advertisement or publication. Upon Our request, You agree to cooperate with Us in good faith to jointly issue a press release or other publication. You grant Us the right to include Your name and logo in any advertisement or publication.
- Modifications. We may make changes or updates to this Agreement or any Supplemental Agreement from time to time in our sole discretion without notice or liability to You. The most current version of this Agreement will be made available at http://legal.atgonline.com, and the most current version of the Supplemental Agreements will be made available at the URLs set forth above.
- Waiver. A waiver by either Party of any breach of this Agreement, or the failure or delay of either Party to enforce any right under this Agreement, will not in any way affect, limit or waive that Party’s right to enforce and compel strict compliance with the same or other provisions.
- Relationship of the Parties. The relationship between the Parties is that of independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties, and neither Party shall have the authority to act as agent for, or to incur any obligations on behalf of the other Party.
- Severability.If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
- Irreparable Harm. You acknowledge that We may have no adequate remedy at law if there is a breach or threatened breach of Sections7.1or 12. Accordingly, We may seek injunctive or other equitable relief without requirement of a bond or notice to prevent or remedy such a breach in addition to any legal remedies available to Us. You shall not object to or defend against such action on the basis that monetary damages would provide an adequate remedy.
- No Third Party Beneficiaries. This Agreement is an agreement between the Parties, and there are no third-party beneficiaries under this Agreement.
- Headings. The Section headings in this Agreement are included for convenience only and shall not limit or otherwise affect the interpretation of any of the terms herein.
- Entire Agreement. This Agreement, the applicable Supplemental Agreements and any Order Forms shall constitute the entire agreement between You and Us regarding Your use of the Services and shall supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
- Survival. Sections 1 and 6- 24 shall survive the expiration or termination of this Agreement.
- Acknowledgment of Understanding. You agree and acknowledge that You have read and understood the terms and conditions of this Agreement.