Master Subscription Agreement

THIS MASTER SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”) IS MADE BETWEEN SSB BART GROUP, INC., A DELAWARE CORPORATION (“SSB”) AND YOU REGARDING YOUR SUBSCRIPTION TO AND USE OF SSB’S SOFTWARE PRODUCTS AND SERVICES, INCLUDING ITS ACCESSIBILITY MANAGEMENT PLATFORM (AMP), SSB UNIVERSITY AND ACCESSIBILITY HELP DESK. IF YOU ARE ENGAGED IN A FREE TRIAL OF ANY OF THESE SERVICES THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL AND THE TERMS OF USE OF THAT TRIAL.

BY CLICKING THE “I ACCEPT” BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, EXECUTING A COPY OF THIS AGREEMENT OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE. IF YOU HAVE A PRE-EXISTING SIGNED AGREEMENT WITH SSB, THE PROVISIONS OF THIS AGREEMENT SUPERSEDE THAT AGREEMENT UNLESS OTHERWISE PROVIDED IN THE ORDER FORM.

SSB collects, uses, and discloses personally identifiable information in accordance with its privacy policy (http://www.ssbbartgroup.com/privacy/), as such policy may change from time to time (the “Privacy Policy”). The Agreement incorporates these terms and conditions, the Privacy Policy, and each Order Form and SOW governing provision of the Services. Certain capitalized terms have the meanings provided in the section titled Definitions .

1 License and Use

1.1 Service Types

SSB Services are provided in four base editions:

  • Individual Edition – A paid edition which provides full access to the Service for a single named user for the Subscription Term;
  • Team Edition – A paid edition which provides full access to the Service for up to five named users for the Subscription Term;
  • Project Edition – A paid edition which provided full access to the Service for up to ten named users for the Subscription Term;
  • Enterprise Edition – A paid edition which provides full access to the Service for all users in a single organization and its affiliates for the Subscription Term.

In addition to paid editions SSB also provides unpaid access to Services for users that solely need to view specific SSB Content and Customer Data in the Service. These “Viewer Accounts” are meant to provide access solely to view specific pieces of Customer Data created in the system. These commonly provide access to view reports that are created by paid edition users with a current, up-to-date subscription to the Service. While the Viewer Account will remain active, when the subscription of the paid edition user that owns such Customer Data in the Service lapses this material will no longer be viewable by the Viewer Accounts.

From time to time, SSB may offer free trials of the Service for various periods of time with no further obligation. These free trials are governed by this Agreement subject to the additional terms and conditions in the section of this Agreement titled Free Trial .

1.2 License Grant

SSB hereby grants you a non-exclusive, non-transferable, worldwide right to use the Services for which you subscribe, solely for your own internal business purposes, during the Subscription Term and subject to the other terms and conditions of this Agreement and the applicable Order Form. All rights not expressly granted to you are reserved by SSB and its licensors.

1.3 Subscription Term

Unless otherwise provided in the applicable Order Form all Services and SSB Content are provided as subscriptions on a three year term basis (“Subscription Term”). Subscriptions for additional Users or Services may be added during the subscription term at the same pricing as the base subscription pricing for that Subscription Term prorated for the portion of that Subscription Term remaining at the time the subscriptions are added. Unless otherwise specified in the Order Form, any added subscriptions will terminate on the same date as the underlying base subscriptions.

1.4 Free Trial

From time to time SSB may provide free access to a Service on a trial basis, free of charge, until the earlier of (a) the end of the free trial period as provided by SSB or (b) the start date of your paid Subscription Term, as set forth on the applicable Order Form. Additional trial terms and conditions may appear on the trial registration web page or form or be communicated to you in electronic media as part of providing the trial. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

1.5 Beta Services

From time to time, SSB may invite you to try Beta Services at no charge. You may accept or decline any such trial at your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. SSB’s warranties and indemnification provisions provided in this Agreement do not apply to Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of three months from the trial start date or the date that a version of the Beta Services becomes generally available. SSB may discontinue Beta Services at any time in its sole discretion and may never make them generally available. SSB will have no liability for any harm or damage arising out of or in connection with a Beta Service.

1.6 Work for Hire Services

From time to time, you and SSB may execute an Order Form governing the provisions of consulting, development or other professional services. If work product created by SSB in the course of performing such services is designated as Work for Hire on the Order Form, such work product will be deemed work made for hire pursuant to the U.S. Copyright Act, 17 U.S.C. §101 et seq, and any foreign equivalent thereof; provided, however, that SSB Technology will not be considered Work for Hire under any circumstances. On payment of all applicable fees, SSB will assign to you all Intellectual Property Rights in such Work for Hire.

2 SSB Responsibilities

2.1 Provision of Subscribed Services

SSB will (a) make the Subscribed Services and related SSB Content available to you pursuant to this Agreement and the applicable Order Form(s), (b) provide standard support for the Subscribed Services to you at no additional charge and (c) use commercially reasonable efforts to make the Subscribed Services available 24 hours a day, 7 days a week, except for: (i) planned downtime of which SSB shall provide at least 8 hours electronic notice and which SSB shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time, and (ii) any unavailability caused by circumstances beyond SSB’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or denial of service attack.

2.2 Protection of Your Customer Data

SSB will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by SSB personnel except (a) to provide the Subscribed Services and prevent or address service or technical problems, (b) as compelled by law or (c) as you expressly permit in writing.

2.3 Internet Delays

SSB’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SSB IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

2.4 Technical Support

SSB will use reasonable efforts to respond to email and phone enquiries solely for users of paid editions of the Services. Technical Support will be provided based on SSB’s then applicable standard support policy or, superseding that, based on specific support terms agreed to in the Order Form.

2.5 Upgrades

This Agreement provides you access to upgrades and enhancements to the Service during the Subscription Term of your paid subscription to the Service. Upgrades will be provided based on SSB’s then applicable upgrade policy or, superseding that, based on specific upgrade terms agreed to in the Order Form.

2.6 Customer Disclosure

Upon acceptance of this Agreement you agree that SSB can disclose the fact that you are a user of any Service you are using and the edition of the Service that you are using.

3 Your Responsibilities

3.1 Appropriate Use of Services

You will (a) be responsible for your Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Customer Data and the means by which you acquired Customer Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and SSB Content, and notify SSB promptly of any such unauthorized access or use, (d) use Services and SSB Content only in accordance with this Agreement, the Order Form, Documentation and applicable laws and government regulations and (e) ensure payment for the Services in accordance with the terms of the section of this Agreement titled Billing, Payments and Fees for Subscribed Services.

3.2 License and Use Restrictions

  1. Services and SSB Content are subject to usage limits, including, for example, the named User subscription quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users and Editions of the Services, and the Services or SSB Content may not be accessed by more than that number of Users and (b) a User’s password may not be shared with any other individual.
  2. You may not access the Services if you are a direct competitor of SSB except with SSB’s prior written consent. In addition, you may not access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
  3. You may not:
    1. license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party a Service, the SSB Content or SSB Technology in any way;
    2. modify, copy or make derivative works based upon a Service, the SSB Content or SSB Technology or any part, feature, function or user interface thereof;
    3. create Internet links or frame or mirror any Service, SSB Content or SSB Technology on any other server or wireless or Internet-based device;
    4. reverse engineer or access the Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of a Service, or (c) copy any ideas, features, functions or graphics of a Service;
    5. modify, translate, decompile or disassemble a Service or SSB Technology, except and solely to the extent an applicable statute expressly and specifically prohibits such restrictions; or
    6. remove any proprietary notices or labels on or in any Services, SSB Content or SSB Technology;
    7. send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
    8. 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;
    9. use a Service to store or transmit Malicious Code;
    10. permit direct or indirect access to or use of any Service or SSB Content in a way that circumvents a contractual usage limit or the terms of this agreement;
    11. copy SSB Content except as explicitly provided in this Agreement;
    12. interfere with or disrupt the integrity or performance of a Service or the data contained therein; or
    13. attempt to gain unauthorized access to a Service or its related systems or networks.
  4. No right, title or interest in or to any trademark, service mark, logo or trade name of SSB or its licensors is granted under this Agreement.
  5. Users must not share their log-in names or passwords (“Credentials”) with any third party, must maintain the confidentiality of all passwords, and may not attempt to use or facilitate use of any Credentials beyond the privileges authorized for them. You are responsible and liable for all activity conducted through the Credentials of your Users. You will immediately notify SSB of any unauthorized use of your Credentials, or any other breach of security related to the Service, of which you become aware. SSB may change the password to your account if SSB believes that it is no longer secure.

3.3 SSB Content Use Restrictions

EXCEPT AS EXPLICITLY PROVIDED IN THE SECTION OF THIS AGREEMENT TITLED ENTERPRISE EDITION FEATURES YOU MAY NOT COPY ANY OF THE SSB CONTENT FROM WITHIN THE SERVICES FOR DISTRIBUTION OUTSIDE OF THE SERVICES. THIS INCLUDES WITHOUT LIMITATION COPYING ANY PORTION OF THE SSB CONTENT, INCLUDING BEST PRACTICES, TRAINING CONTENT AND METHODOLOGY CONTENT INTO AN ELECTRONIC DOCUMENT, E-MAIL, INSTANT MESSAGE OR ANY ELECTRONICALLY DISSEMINABLE MEDIUM OR FORM. UPON BREACH OF THIS RESTRICTION YOU AGREE UNCONDITIONALLY TO PURCHASE A NUMBER OF THREE-YEAR USER SUBSCRIPTIONS EQUAL TO THE TOTAL NUMBER OF INDIVIDUALS IN RECEIPT OF SUCH A DISTRIBUTION OF SSB CONTENT AT THE THEN CURRENT LIST PRICE FOR AN INDIVIDUAL EDITION SINGLE USER SUBSCRIPTION FOR THE RELEVANT SERVICE. THE SUBSCRIPTIONS PURCHASED IN THIS FASHION WILL INCLUDE WITHOUT LIMITATION THE TOTAL NUMBER OF INDIVIDUALS INDICATED IN THE TO, CARBON COPY (CC) AND BLIND CARBON COPY OF ANY ELECTRONIC COMMUNICATIONS CONTAINING THE SSB CONTENT.

3.4 Named User Basis

Subscriptions provided as part of the Individual, Team and Project Editions of all Services are provided on a named User basis and are intended to be used by a single, named User for the duration of the Subscription Term. SUBSCRIPTIONS TO USE A SERVICE ARE NOT PROVIDED ON A CONCURRENT BASIS AND A SINGLE USER SUBSCRIPTION IS MEANT SOLELY TO BE USED BY ONE USER DURING THE SUBSCRIPTION TERM.

3.5 Subscription Transfer

SSB recognizes that individuals will change jobs and roles and that, from time-to-time, subscriptions will need to be moved between individuals within an organization. Such transfers are allowed under this Agreement when they occur at natural points when individuals transfer between job roles. This Subscription transfer is not, however, meant to provide a method to transfer subscriptions between Users on a single project or for other short term coverage of multiple users under a single subscription. Subscription transfers are effectuated by SSB support.

3.6 Exceeding Usage Limits

If you exceed a contractual usage limit, SSB may work with you to seek to reduce your usage so that it conforms to that limit. If, notwithstanding SSB efforts, you are unable or unwilling to abide by a contractual usage limit, SSB will invoice you for overage periods and increase the number of Users or other applicable metrics of your subscription for the remainder of the Subscription Term. You agree to pay for excess usage in accordance with the section of this agreement titled Billing, Payments and Fees for Subscribed Services.

3.7 Audit Right

SSB may, at its expense and not more frequently than annually, audit your use of the Services, and you agree to reasonably cooperate with respect to any such audit. Any such audit shall be conducted with at least thirty (30) days’ notice, during regular business hours at your facilities and shall not unreasonably interfere with your business. If the audit indicates a discrepancy in the fees payable to SSB greater than five percent (5%) of the amount paid by you for the period audited, you shall pay SSB’s reasonable expenses of the audit in addition to any other amounts due.

4 Enterprise Edition Features

For any period when you maintain an active Enterprise subscription for a Service the additional terms and conditions apply:

4.1 SSB Content Use

In addition to the standard features of a Service provided under this agreement, you will be provided broader rights to use and distribute the SSB Content related to Services you have an Enterprise subscription for throughout your organization and Affiliates. This includes the ability to make copies of the SSB Content for internal use and use SSB Content from the Service outside of the Services while maintaining its distribution solely within your organization and its Affiliates. The SSB Content can be deployed in your systems including, but not limited to, requirements documents, requirements systems, feature and defect training systems, learning management systems, training manual, reference manuals and other, related, enterprise systems and documents.

UPON EXPIRATION OR TERMINATION OF THIS AGREEMENT OR EXPIRATION OF THE RELEVANT ENTERPRISE SUBSCRIPTION YOU AGREE TO RETURN ALL COPIES OF THE SSB CONTENT YOU HAVE MADE TO SSB, DELETE THE SSB CONTENT FROM ALL SYSTEMS TO WHICH IT HAS BEEN COPIED OR INSTALLED, AND PROVIDE A CERTIFICATION THAT THE SSB CONTENT HAS BEEN REMOVED AND IS NO LONGER IN USE.

For the period of the Enterprise Subscription Term this SSB Content use term supersedes the use restrictions described in the section of this Agreement titled CONTENT USE RESTRICTIONS.

4.2 Onsite Installation

For Enterprise Edition subscriptions SSB allows customers to install certain Services – including AMP and SSB University – onsite at a customer’s location. This allows for the Services to be accessed and used directly on the customer’s network. Support for such installations may require an additional fee to be paid as provided in the Order Form.

5 Ownership

5.1 SSB Rights Reserved

Except for the limited use rights provided herein, title, ownership rights, and Intellectual Property Rights in all of the Services shall remain in SSB. The Services and SSB technology are protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the SSB Content and other materials accessed through the Services are the property of the applicable content owner and are protected by applicable law. The license granted under this Agreement gives you no rights to such SSB Content and materials. The terms of purchase and sale in regard to any software (other than software delivered as Work for Hire pursuant to Section 1.6) notwithstanding, your right to such software will be limited to those of a licensee.

5.2 Open Source Notice

SSB may distribute third party open source software programs with the Services either incorporated into the Services or provided separately. These third party programs are subject to their own additional license terms, none of which require notice, attribution, payment, disclosure or license back of any customer information. A list of open source software programs delivered with the Services is available on request from SSB.

6 Representations, Warranties, Remedies and Disclaimers

6.1 General Warranties

  1. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
  2. SSB represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Services will perform substantially in accordance with the online help documentation under normal use and circumstances.
  3. You represent and warrant that you have not falsely identified yourself or provided any false information to gain access to the Services and that your billing information is correct.

6.2 Limited Warranty and Refunds

SSB warrants that the Services will perform substantially in accordance with the Documentation accompanying the Service for a period of thirty (30) days after the Effective Date of this Agreement. SSB’s entire liability and your exclusive remedy for breach of this warranty shall be, at SSB’s option, either to (a) provide a bug‑fix, patch or work-around for the non‑conforming Service or Software; (b) replace the non‑conforming Software with conforming Software; or (c) terminate this Agreement and return to you any fees paid hereunder. This limited warranty shall be void if failure of the Service or Software has resulted from any accident, abuse, misuse or misapplication by you.

6.3 Disclaimer of Warranties

EXCEPT AS PROVIDED IN THE SECTION OF THIS AGREEMENT TITLED REPRESENTATIONS, WARRANTIES, REMEDIES AND DISCLAIMERS, SSB MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY SSB CONTENT. SSB DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES 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 SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE SERVICES AND ALL SSB CONTENT ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS, AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INCLUDING USE OF THE SOFTWARE IN COMMON CARRIERS, CRITICAL SAFETY SYSTEMS OR NUCLEAR FACILITIES, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SSB AND ITS LICENSORS.

7 Limitations of Liability

7.1 IN NO EVENT SHALL EITHER PARTY 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 AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY SSB CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION IN THE SSB CONTENT (REGARDLESS OF CAUSE), EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.2 IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF $100 AND THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

7.3 NOTWITHSTANDING THE STATEMENTS PROVIDED IN THE SECTION OF THIS AGREEMENT TITLED REPRESENTATIONS, WARRANTIES, REMEDIES AND DISCLAIMERS, FREE TRIAL AND BETA SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO TEAM EDITION); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.

8 Confidentiality

8.1 Confidential Information

Confidential Information” means (a) any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, algorithms, business plans, customer data, customer lists, customer names, designs documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know-how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, trade secrets or any other information which is designated as “confidential,” “proprietary” or some similar designation and (b) any information otherwise obtained, directly or indirectly, by a receiving party through inspection, review or analysis of the materials described in clause (a). Information disclosed orally shall be considered Confidential Information only if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information of a third party that is in the possession of one of the parties and is disclosed to the other party under this Agreement. Confidential Information includes, without limitation, any Products, related documentation, specifications, pricing, disclosures in connection with Services and the terms and conditions of this Agreement. Confidential Information shall remain the sole property of the disclosing party or its licensors.

8.2 Exceptions

Information will not be considered as Confidential Information if the receiving party can establish by documentary evidence that the information is or was: (a) lawfully available to the public through no act or omission of the receiving party; (b) in the receiving party’s lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party; (c) lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) independently developed by the receiving party.

8.3 Nondisclosure

The parties agree, both during the term of this Agreement and for a period of five (5) years (or, as applicable, with respect to Confidential Information that is a trade secret, for an indefinite period) after its termination, to hold each other’s Confidential Information in confidence and not to disclose such information in any form to any third party without the express written consent of the disclosing party, except to employees and consultants performing services for the benefit of the receiving party who are under a written non-disclosure agreement protecting the applicable Confidential Information in a manner no less restrictive than this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement. A receiving party facing legal action to disclose Confidential Information of the disclosing party shall promptly notify and provide the disclosing party the opportunity to oppose such disclosure or obtain a protective order and shall continue to treat such information as Confidential Information. This Section shall not be construed as granting or conferring any rights to either party by license or otherwise, expressly or implicitly, to any Confidential Information.

9 Billing, Payments and Fees for Subscribed Services

9.1 Service Subscriptions

SSB will bill you and you agree to pay all fees for the Services in accordance with each Order Form. Except as otherwise provided on an Order Form, all fees are due within 30 days of SSB’s invoice and all indicated prices are annual prices. If there is a conflict in terms between this Agreement and a SSB invoice or any purchase order submitted by Customer, this Agreement shall control. Any additional or different terms in invoices, acknowledgment forms, purchase orders, or other communications, are deemed material, are objected to, and rejected by the parties.

9.2 Renewal

SSB will automatically renew your subscription and bill your credit card or issue an invoice to you prior to the expiration of your Subscription Term or as otherwise mutually agreed to in your Order Form. The renewal charge will be based on the then current price for your edition of the Service and the subscription fee then currently in effect.

9.3 Taxes

SSB is solely responsible for taxes assessable against SSB based on SSB’s income, property and employees. SSB’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities (“Taxes”), 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 SSB’s income. You are responsible for paying all Taxes associated with your orders hereunder. If SSB has a legal obligation to pay or collect Taxes for which you are responsible, SSB will invoice you and you will pay that amount unless you provide SSB with a valid tax exemption certificate authorized by the appropriate taxing authority.

9.4 Payment Form

You agree to provide SSB with valid and updated credit card information, a valid purchase order or alternative document reasonably acceptable to SSB to guarantee payment for the Services. If you provide credit card information to SSB, you authorize SSB to charge the credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in this section. Such charges shall be made in advance according to the then in effect renewal terms for the Services or with the billing frequency stated in the applicable Order Form.

9.5 Billing Information

  1. You agree to provide SSB 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 Organization 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, SSB reserves the right to terminate your access to any Service in addition to any other legal remedies.
  2. If you believe your bill is incorrect, you must contact us in writing within 30 days of the date of the applicable invoice to be eligible to receive an adjustment or credit.

9.6 Non-Payment and Suspension

  1. In addition to any other rights granted to SSB herein, SSB reserves the right to suspend or terminate this Agreement and your access to any Service if your account becomes delinquent. Delinquent invoices 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 all agreed to Services during any period of suspension. If you or SSB initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the terms of the section of this Agreement titled Billing, Payments and Fees for Subscribed Services. You agree that SSB may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
  2. SSB reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to a Service. You agree and acknowledge that SSB 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.

9.7 Future Functionality

Unless explicitly provided for in the Order From you agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by SSB regarding future functionality or features.

9.8 Other Services

You and SSB recognize that, from time to time, you may wish to purchase other Services and products from SSB. Fees for other Services and products will be charged on an as-quoted basis and all relevant terms defined in an Order Form for the service or product. All other terms and conditions of this Agreement will apply unless explicitly waived in the Order Form for the relevant Service.

10 Term and Termination

10.1 Term of Agreement

  1. This Agreement commences on the date you first accept it.
  2. For paid editions of any Service the Agreement continues until all Subscription Terms hereunder have expired or been terminated.
  3. For unpaid use of the system, such as that provided by a Viewer Account, the term is indefinite and may be terminated at any time in SSB’s sole discretion.
  4. Either party may terminate this Agreement by notifying the other party in writing at least thirty (30) business days prior to the date of the invoice for the following term.
  5. In the event this Agreement is terminated (other than by reason of your breach), SSB will make available to you a file of Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that SSB has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.

10.2 Termination for Cause

  1. Either party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach and if such breach remains uncured at the expiration of the 30 day notice period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
  2. Any breach of your payment obligations or unauthorized use of the Services, SSB Technology or SSB Content will be deemed a material breach of this Agreement. SSB, in its sole discretion, may terminate your password, account or use of any Service if you breach or otherwise fail to comply with this Agreement. In addition, SSB may terminate any unpaid account at any time at its sole discretion. You agree and acknowledge that SSB has no obligation to retain 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.

10.3 Surviving Provisions

The Sections titled Your Responsibilities, Ownership, Limited Warranty and Refunds, Disclaimer of Warranties, Limitations of Liability, Mutual Indemnification, Definitions and General Provisions will survive any termination or expiration if this Agreement.

11 Mutual Indemnification

11.1 Indemnification by SSB

SSB will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that the use of a Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a court-approved settlement of, a Claim Against You, provided you (a) promptly give SSB written notice of the Claim Against You, (b) give SSB sole control of the defense and settlement of the Claim Against You (except that SSB may not settle any Claim Against You unless it unconditionally releases you of all liability), and (c) give SSB all reasonable assistance, at SSB’s expense. If SSB receives information about an infringement or misappropriation claim related to a Service, SSB may in its discretion and at no cost to you (i) modify the Service so that it no longer infringes or misappropriates, without breaching its warranties under the Representations, Warranties, Remedies and Disclaimers section of this agreement, (ii) obtain a subscription for your continued use of that Service in accordance with this Agreement, or (iii) terminate your subscription for that Service upon 30 days’ written notice and refund to you any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from SSB Content or your breach of this Agreement.

11.2 Indemnification by You

You will defend SSB against any claim, demand, suit or proceeding made or brought against SSB by a third party alleging that Customer Data, or your use of any Service or SSB Content, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “ Claim Against SSB”), and will indemnify SSB from any damages, attorney fees and costs finally awarded against SSB as a result of, or for any amounts paid by SSB under a court-approved settlement of, a Claim Against SSB, provided SSB (a) promptly gives you written notice of the Claim Against SSB, (b) gives you sole control of the defense and settlement of the Claim Against SSB (except that you may not settle any Claim Against SSB unless it unconditionally releases SSB of all liability), and (c) gives you all reasonable assistance, at your expense.

11.3 Exclusive Remedy

This section, titled Mutual Indemnification, states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

12 Definitions

As used in this Agreement and in any related documents associated herewith:

  • “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
  • “Beta Services” means SSB Services that are not generally available to customers;
  • “Customer Data” means any data, information or material provided or submitted by you to an SSB Service in the course of using the Service;
  • Documentation” means SSB online user guides, documentation, and help and training materials, as updated from time to time, accessible via an SSB Service.
  • “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
  • “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
  • “Order Form” means an ordering document specifying the Services to be provided hereunder that has been executed by you and SSB, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms can include mutually executed Statements of Work (SOWs), invoices documents, quotes or Purchase Orders.
  • “Organization Administrator(s)” means those Users designated by you who are authorized to purchase subscriptions online, create User accounts and otherwise administer your use of the Service;
  • “Subscribed Services” means Services you or your Affiliates order under an Order Form, as distinguished from those provided pursuant to a free trial.
  • “SSB Content” means the text, audio and visual information, documents, reference manuals, best practices, standards, training materials, training slides, solutions documents, products and services contained or made available to you in the course of using any SSB Service;
  • “SSB Technology” means all of SSB’s proprietary technology including without limitation Services, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available to you by SSB in providing the Services;
  • “Subscription Term(s)” means the period(s) during which you are authorized to use a Service as a paid user;
  • “Service(s)” means the specific edition of SSB’s AMP system, SSB University, Compliance Monitor, Accessibility Help Desk or another SSB service you have been provided a subscription to access. The service includes ancillary online or offline products and services provided to you by SSB and that you are being granted access to under this Agreement including all SSB Technology and SSB Content related to the Service;
  • “User(s)” means an individual authorized to use the Service. This includes your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you or by SSB at your request.
  • “Viewer Account” means a User account that has access to view content – typically a report – in a Service that was created by a User with an up-to-date, paid subscription to the Service.
  • “We,” “Us” or “Our” means SSB Bart Group, Inc.
  • “You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity

13 General Provisions

13.1 Relationship of the Parties

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

13.2 Export Regulations

All Service and technical data delivered under this Agreement are subject to US export control laws and may be subject to export or import regulations in other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to you.

13.3 Anti-Corruption

You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any SSB employee or agent in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify SSB’s Contracting Department through your SSB account manager.

13.4 U.S. Government Restricted Rights

If Services under this agreement, including related software and technology, are for ultimate U.S. Federal government end use they are provided solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with SSB to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

13.5 Construction

This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.

13.6 Integration; Enforcement of Rights

This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. The failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of any rights of such party.

13.7 Modification of Agreement

SSB may amend this Agreement from time to time by posting an amended version at its website and sending you written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”). However, if you give SSB written notice of rejection of the amendment prior to the Proposed Amendment Date, this Agreement will continue under its original provisions, and the amendment will become effective at the start of the next term.

13.8 Severability

If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then such provision shall be enforced to the maximum extent permitted by applicable law.

13.9 Headings

Headings contained in this Agreement are for convenience of reference only and do not form part of this Agreement. A word importing the singular includes the plural and vice versa. Gendered pronouns are used for convenience and are intended to refer the masculine or feminine, as applicable.

13.10 Assignment

This Agreement is personal to you and may not be assigned, whether by operation of law or otherwise, except that either party may assign this Agreement to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party or an applicable business unit. Any other purported assignment shall be void.

13.11 Notices

Every notice or other communication required or contemplated by this Agreement by either party shall be delivered to the other party at the address in the signature block of the Order Form by: (i) personal delivery; (ii) postage prepaid, return receipt requested, registered or certified mail; (iii) internationally recognized express courier, such as Federal Express, UPS or DHL; or (iv) facsimile or email with a confirmation copy sent simultaneously by postal mail. Notice not given in writing shall be effective only if acknowledged in writing by a duly authorized representative of the party to whom it was given. A party may change its address by providing notice to the other party in accordance with this paragraph.

13.12 Governing Law

This Agreement shall be governed by and construed in accordance with laws of the State of California notwithstanding any choice-of-law principle that might dictate a different jurisdiction’s governing law. Any legal action or proceeding with respect to this Agreement shall be brought in the federal or state courts in San Francisco County, California, and, by execution and delivery of this Agreement, the parties accept for themselves and in respect of their property, generally and unconditionally, the jurisdiction of the aforesaid courts. The parties irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, which any of them may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions.

13.13 Attorney Fees

In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorney’s fees and expenses and court costs.

13.14 Counterparts

This Agreement may be accepted electronically or executed by written or electronic signature and delivered in multiple counterparts, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement.

13.15 MSA Version

This Agreement is or is based on SSB BART Group’s Master Subscription Agreement Fall 2015 version. This section is informative only and has no impact on any other part of this agreement.

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