Terms of Service - Subscription Agreement
Noteable’s subscription agreement terms were last updated 9/9/2024.
This SaaS Services Agreement (“Agreement”) is entered into on this _______ day of ________, _____ (the “Effective Date”) between Noteable, LLC. with a place of business at 3040 Avemore Square Place, Charlottesville, VA 22911 (“Company”), and ______________________________ (“Customer”). There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
Terms and Conditions
1. SAAS SERVICES AND SUPPORT
Subject to the terms of this Agreement, Company will provide Customer with access to a private tenancy of the Noteable software-as-a-service platform, train and assist with initial configuration, and provide ongoing technical support, as defined in the Support Terms below (“The Services”).
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations, including but not limited to the Health Insurance Portability and Accountability Act ("HIPAA"), as amended, and related privacy, security, breach notification, and enforcement regulations defined at 45 C.F.R. Parts 160 and 164 ("HIPAA Rules"), and all applicable federal, state, and international data privacy laws and regulations. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.3 Customer represents, warrants, and covenants to Company that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Company and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or any privacy or other rights of any third party or violate any applicable law.
3. PAYMENT OF FEES
3.1 Customer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
3.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. If Company has Customer payment info on file, Company reserves the right to debit payment immediately upon issuance of Invoice to Customer. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
4. TERM AND TERMINATION
4.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as set forth in the Order Form
4.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including on the last day on which the Services are provided.
4.3 Upon any termination, Company will place Customer tenancy into Maintenance Mode. In maintenance mode, a single user account with administrator level access may continue to log into Noteable for the purposes of accessing and reviewing historical client data. For the first full month following termination, this service is at no charge. Thereafter, Customer agrees to pay a maintenance fee of $100/mo for this continued service. Customer may terminate maintenance mode by request at any time. Regardless, Company will retain all Customer data, in archive form, for a minimum period of 10 years from termination. Thereafter, Company may or may not opt to destroy Customer data.
4.4 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
5. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the
Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
6. INDEMNITY
6.1 Company shall indemnify, defend, and hold harmless Customer and its officers, directors, employees, agents, successors, and assigns (“Customer Indemnitee”) from losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (“Losses”) resulting from third-party claims of infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer Indemnitee’s specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer Indemnitee continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer Indemnitee’s use of the Service is not strictly in accordance with this Agreement or the documentation. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company likely to be claimed to be infringing, Company may, at its option and expense (a) replace or modify the Service to be noninfringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer Indemnitee a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer Indemnitee’s rights hereunder and provide Customer Indemnitee a refund of any prepaid, unused fees for the Service calculated from the date of termination. THIS SECTION 7(a) SETS FORTH CUSTOMER'S SOLE REMEDIES AND COMPANY'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
6.2 Customer shall indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, successors, and assigns (each, a "Company Indemnitee") from and against any and all Losses incurred by such Company Indemnitee resulting from any third party claim arising out of or result from, or are alleged to arise out of or result from: (i) Customer Data, including any processing of Customer Data by or on behalf of Company in accordance with this Agreement; (ii) any other materials
or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any User, including Company's compliance with any specifications or directions provided by or on behalf of Customer or any User to the extent prepared without any contribution by Company; (iii) allegation of facts that, if true, would constitute Customer's breach of any of its representations or warranties, under this Agreement; or (iv) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any User, or any third party on behalf of Customer or any User, in connection with this Agreement.
6.3 The operations performed by Customer shall be at the risk of the Customer exclusively. To the fullest extent permitted by law, Customer shall indemnify, defend (at Customer’s sole expense) and hold harmless Company, affiliated companies of Company, their partners, joint ventures, representatives, members, designees, officers, directors, shareholders, employees, agents, successors, and assigns from and against any and all claims for bodily injury, death or damage to property, demands, damages, actions, causes of action, suits, and losses, judgments, obligations and any liabilities, costs, and expenses (including but not limited to investigative and repair costs, attorney’s fees and costs, and consultants’ fees and costs) (“Claims”) which arise or are in any way connected with Work performed, Materials furnished, or Services provided under this Agreement by Customer or its agents. These indemnity and defense obligations shall apply to any acts or omissions, negligent or willful misconduct of Customer, its employees or agents, whether active or passive.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. RIGHTS TO CONTENT BUILT ON PLATFORM
Company shall retain the rights to reuse and redistribute any documentation templates which are built on behalf of Customer by Company employees or Company-hired contractors, using the documentation template builder functionality within the Software. Customer acknowledges that any documentation templates built within the Software may be added to a centralized repository, maintained by Company, from which Company may select templates to be modified, re-branded and used for other customers. If such documentation was sourced from sample documents provided by the Customer to the Company
for such purpose, Company shall ensure any proprietary branding or language is removed before adding to repository.
9. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior knowledge and approval.
