Unilog Master Software Subscription and Services Agreement

1.1 “Affiliate” means any corporation, partnership, joint venture, joint stock company, limited liability company, trust, estate, association, or other entity the existence of which is recognized by any governmental authority, (collectively an “Entity”) that directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with Customer or any Entity in which Customer has any direct or indirect ownership interest, whether controlling or not, of at least 50%, at any time during the Subscription Term.
1.2 “Customer Support” means the business team within Unilog that provides services to assist Customer to resolve issues with the Subscription Services.
1.3 “Customer Portal” means the Unilog-provided website for access to Customer Support tools, including case management, online training, and documentation.
1.4 “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics of the Software as provided by Unilog electronically or otherwise.
1.5 “Downtime” is defined as any period of time when Customer is unable to access the Subscription Services.
1.6 “End-User License Agreement” or “EULA” means a separate software license agreement for certain software that is provided to the Customer as part of the Subscription Services.
1.7 “Incident” means any set of circumstances resulting in a failure to meet a Service Level except for Incident as defined under SLA exclusions.
1.8 “Monthly Uptime Percentage” for a specific customer is calculated by taking the total number of minutes in a calendar month minus the total number of minutes of Downtime experienced in a given calendar month, divided by the total number of minutes in that calendar month
1.9 “Order” and “Order Form” refers generally and collectively to the Order Form executed by Unilog and Customer.
1.10 “Privacy Policy” means Unilog’s data privacy policy as provided by Unilog electronically or otherwise as described on Unilog’s website: https://unilogcorp.com/privacy-policy/
1.11 “Professional Services” means professional services such as platform configuration, website design, and user training provided pursuant to a Statement of Work. Professional Services under this Agreement do not include services provided by a third-party distributor or reseller that may provide services under a separate agreement between Customer and that third party.
1.12 “Scheduled Downtime” is defined as: (i) Downtime within pre-established maintenance windows; or (ii) Downtime during major version upgrade; Scheduled Downtime is not considered Downtime for purposes of the SLA.
1.13 “Service Credit” is the percentage of the monthly service fees for the Service that is credited to Customer for a Service Level not met pursuant to the SLA outlined in Section 8.
1.14 “Service Level” means standards Unilog adheres to and by which it measures the level of service it provides as specifically set forth below.
1.15 “Service Level Agreement” or “SLA” means the standard services levels set forth in Section 8 that are applicable to the Subscription Services.
1.16 “Services” refer generally and collectively to all services provided by Unilog to Customer as set forth in the Order Form, such as Subscription Services, Support Services, and Professional Services. Services under this Agreement do not include services provided by a third-party distributor or reseller that may provide services under a separate agreement between Customer and that third party.
1.17 “Software” means Unilog’s cloud-based Unilog software programs and applications which are made up of Unilog’s proprietary software.
1.18 “Software Defect” means a defect, error, or bug in the Software having an adverse effect on the appearance, operation, functionality, or performance of the Software, but excluding any defect, error, or bug caused by or arising as a result of:

1.19 “Statement of Work” or “SOW” means the document setting forth the specifications for Services, Support Services, and/or Professional Services as described in the Order Form.
1.20 “Subscription Order” means an order for Subscription Services as described in the Order Form setting forth the Services that Customer wishes to obtain from Unilog.
1.21 “Subscription Services” means cloud-based Software and/or data subscriptions provided by Unilog and Customer’s access to such cloud-based Software and/or Data Content Repositories (“Data Subscription”) as set forth in this Agreement and in a Subscription Order.
1.22 “Subscription Services License” means a limited use license for the ordered Subscription Services.
1.23 “Subscription Term” means the term during which Customer may access the Subscription Services as described in the Order Form.
1.24 “Support Services” means the maintenance and support services included with an Order for Subscription Services as further described in section 8 of the Agreement and the Order Form.
1.25 “Third Party Software” means software and services authored by a third party.
1.26 “User” means those individuals granted access to the Software by the Customer’s administrator. Users may include Customer (or its Affiliate) employees, consultants, contractors, agents, and approved third parties with which Customer transacts business.

3.1 License Grant. Unilog grants to Customer and its Users, a non-exclusive, non-transferable, worldwide right to access the Software in connection with the Subscription Services as purchased by Customer in the Order Form. Customer may access the Software for Customer’s own business use.
3.2 Updates. During the Subscription Term, Unilog reserves the right to update Customer’s Software so that it remains current with the then current version of Software available to Unilog’s customers.
3.3 Users. Customer is responsible for each of its Users’ acts and omissions and remains liable to Unilog for any User’s (including an authorized third party acting as a User on Customer’s behalf) breach of the Agreement.
3.4 New Features. Over the course of the Subscription Term Unilog may introduce new features, functionality, software, or user types that are not included in the subscription detailed in the Order Form (“New Features”). In the event Customer desires to purchase New Features a new Order Form with updated pricing to reflect the requested New Features shall be required to be entered into by Customer with Unilog.
3.5 Usage Restrictions. Unless expressly agreed otherwise in the applicable Order, Customer shall not gain or attempt to gain unauthorized access to any portion of the Software, or its related systems or networks, for use in a manner that would exceed the scope granted under the Agreement or facilitate any such unauthorized access for any third party. If any unauthorized access occurs, Customer shall promptly notify Unilog of the incident and shall reasonably cooperate in resolving the issue. Customer shall not reverse engineer, decompile, or disassemble any Software or otherwise attempt to discover the source code thereof or permit any third party to do so. Customer shall not attempt to disable or circumvent any security measures in place. Customer may not knowingly reproduce or copy the Software, in whole or in part. Customer shall not modify, adapt, or create derivative works of the Software. Customer shall not use the Software to store or transmit libelous or otherwise unlawful or tortious material or any material in violation of third-party privacy rights. Customer shall not knowingly interfere with or disrupt the integrity or performance of the Software or third-party data contained therein.
3.6 Customer Liability for Affiliates and Users. Customer will be responsible for compliance of this Agreement by its Affiliate’s and any third-party User and, for purposes of the foregoing, all obligations of Customer shall apply equally to each such Affiliate or User that accesses or receives the Services.

4.1 Data Processing and Protection of Personal Data. Unilog shall process all personal data in accordance with this Section 4 and the Privacy Policy provided by Unilog, which is hereby incorporated by reference. By entering into this Agreement, Customer agrees to be bound by all of the terms and conditions contained in the Privacy Policy. Should Customer Data include personal data (as defined in the EU Data Protection Directive 95/46/EC until 25 May 2018 and the General Data Protection Regulation (EU) 2016/679 on and from 25 May 2018 – GDPR) that is sourced from the European Economic Area (EEA), the terms of the Privacy Policy shall apply to the processing of such Customer Data.
4.2 Security. As a part of the Services, Unilog shall maintain appropriate administrative, physical, and technical safeguards for the security, confidentiality, and integrity of any data or information inputted, edited, authored, generated, managed, or otherwise submitted by Customer or its Users into Customer’s subscription account (“Customer Data”). Such measures and safeguards include, but shall not be limited to, measures for preventing access, use, modification, or disclosure of personal and confidential data by Unilog or its employees or agents except (a) for providing Services and prevent or address service or technical problems, (b) to abide by the law or (c) on the basis of Customer’s express permit.
4.3 Log-Ins and Passwords. In addition to the foregoing obligations, Customer agrees to hold the Software, Subscription Services and all associated log-ins and passwords in confidence, and to protect the confidential nature thereof, and shall not disclose any trade secrets contained, embodied, or utilized therein, to anyone other than a User having a need for such disclosure, and then only to allow the use of the Software as authorized herein. Customer shall take all reasonable steps to ensure that the provisions of this section are not violated by any employee, User, or any other person under Customer’s control or in its service.
4.4 Customer Data. Except as otherwise agreed in writing, Customer is responsible for the accuracy, truthfulness, consistency, completeness, and any output from the Software, and consents to use of all Customer Data in accordance with the Agreement, and Unilog will neither have the responsibility to review, nor any liability as to the accuracy of, any information or content posted by Customer or its Users.
4.5 Compliance with Law. Customer’s and its Users’ access to the Software will comply with applicable local, state, federal and international law, regulations and conventions, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data. Customer represents and warrants to Unilog that Customer has sufficient rights in the Customer Data to authorize Unilog to process, distribute and display the Customer Data as contemplated by the Agreement and that the Customer Data and its use hereunder will not violate or infringe the rights of any third party.

6.1 Term. The Agreement begins on the Effective Date of the applicable Order Form and shall continue as described in the Order Form (the “Term”).
6.2 Subscription Term. The subscription term shall run as specified in the Order Form.
6.3 Survival. Expiration of the Agreement will terminate those obligations and rights of the parties pursuant to provisions of the Agreement which by their express terms are intended to survive and such provisions will survive the expiration or termination of the Agreement. Without limiting the foregoing, the respective rights and obligations of the parties under Sections 1, 4, 5, 7, 9, 11, 12 and 13 of this Agreement will survive the expiration or termination of the Agreement regardless of when such termination becomes effective.

7.1 Confidential Information. Further to the confidentiality terms found in the Order Form, in connection with the Agreement, each of the parties may disclose to the other party information that relates to the disclosing party’s or disclosing party’s customers’ business operations, financial condition, customers, products, services, or technical knowledge (“Confidential Information”). Except as otherwise specifically agreed in writing, each party agrees that: (a) all information communicated to it by the other in connection with the Agreement and identified as confidential, (b) any information exchanged between the parties in connection with Customer’s purchase of any additional Services, and (c) all information communicated to it that reasonably should have been understood by the receiving party, because of confidentiality, descriptions or similar legends, the circumstances of disclosure or the nature of the information itself, to be confidential to the disclosing party, will be Confidential Information and will be deemed to have been received in confidence and will be used only for purposes of the Agreement. Unilog Confidential Information includes the Software, Services, Fees, the terms of the Agreement, intellectual property inclusive of pending/issued patents, trademarks, copyrights, trade secrets, know how, or other intellectual property, data taxonomies, data sources, development plans, and any security specifications, reports or assessments related to the Software, Unilog or its Cloud Hosting Providers. Customer Confidential Information includes Customer Data.
7.2 Standard of Care; Third Parties. Each party, including all Affiliates and Users, will use at least the same degree of care to safeguard and to prevent disclosing to third parties the Confidential Information of the other as it employs to avoid unauthorized disclosure or publication of its own information (or information of its customers) of a similar nature, and in any event, no less than reasonable care. Each party may disclose relevant aspects of the other party’s Confidential Information to its employees to the extent such disclosure is reasonably necessary for the performance of its obligations, or the enforcement of its rights, under the Agreement; provided, however, that Customer shall ensure that its Affiliates and each User shall comply with these confidentiality provisions. All third persons engaged by any party shall be in compliance with this Section 7.
7.3 Exclusions; Permitted Use. This section will not apply to any particular information that either party can demonstrate (a) was, at the time of disclosure to it, in the public domain, (b) after disclosure to it, is published or otherwise becomes part of the public domain through no fault of the receiving party, (c) was in the possession of the receiving party at the time of disclosure to it and was not the subject of a pre-existing confidentiality obligation, (d) was received after disclosure to it from a third party who had a lawful right to disclose such information (without corresponding confidentiality obligations) to it, or (e) was independently developed by or for the receiving party without use of the Confidential Information of the disclosing party. In addition, a party will not be considered to have breached its obligations under this Section 7 for disclosing Confidential Information of the other party to the extent required to satisfy any legal requirement of a competent governmental or regulatory authority, provided that promptly upon receiving any such request, and to the extent it is legally permissible, such party advises the other party prior to making such disclosure and provides a reasonable opportunity to the other party to object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or (subject to applicable law) take such other action as it considers appropriate to protect the Confidential Information.
7.4 Unauthorized Access. Each party will: (a) notify the other party promptly of any material unauthorized possession, use, or knowledge of the other party’s Confidential Information by any person that may become known to such party, (b) promptly furnish to the other party details of the unauthorized possession, use, or knowledge, or attempt thereof, and use reasonable efforts to assist the other party in investigating or preventing the recurrence of any unauthorized possession, use, or knowledge, or attempt thereof, of Confidential Information, (c) use reasonable efforts to cooperate with the other party in any litigation and investigation against third parties deemed necessary by the other party to protect its proprietary rights, and (d) promptly use reasonable efforts to prevent a recurrence of any such unauthorized possession, use, or knowledge of Confidential Information.

8.1 Service Level Tiers. Service Levels are divided into 3 tiers: Base, Gold, and Platinum. Base level support is included with the software and comprised of:

Gold and Platinum tiers are available for an additional subscription, and the additional service offerings for each are described in the Order Form.
8.2 Service Credit Claims. It shall be in the sole discretion of Unilog to determine whether Unilog has met the Service Level. Customer must at all times cooperate with Unilog in testing, determining and verifying that a qualifying service outage has occurred.

8.3 SLA Exclusions. This SLA and any applicable Service Levels do not apply to any performance or availability issues:

9.1 Unilog Ownership. Unilog retains all ownership of and title to, and all intellectual property rights in, the Software, Services, and all software, equipment, processes, facilities, and materials utilized by or on behalf of Unilog to provide the same, including all issued/pending patents, trademarks, copyrights, trade secrets, and data schemas, compilations, and/or enhanced data provided/generated/utilized by the Software and/or Services, and other property or intellectual property rights. Customer acknowledges and agrees that Unilog shall own all right, title and interest in and to any modifications, derivative works, changes, expansions or improvements to the Software, and Services, without any other or subordinate right whatsoever being held by Customer. Customer shall acquire no rights therein other than those limited rights specifically conferred by the Agreement. Customer may not create derivative works based upon the Software, or Services in whole or in part, or develop or request third parties to develop or modify any software based on ideas, processes, or materials incorporated therein. All rights related to the Software, or Services that are not expressly granted to Customer under the Agreement are reserved by Unilog. Except if expressly permitted by Unilog in writing this Agreement does not grant the Customer any right to use Unilog trademarks or any other Unilog brand elements.
9.2 Customer Ownership. With the exception of a license granted to Unilog to use Customer Data solely for the purpose of performing the Services, Unilog acquires no right, title, or interest from Customer or its Users to Customer Data, including any intellectual property rights therein. Subject to the Agreement, Customer, its Users and each of its Affiliates hereby grant Unilog a limited, royalty-free, fully-paid up, non-exclusive and non-transferable license to process Customer Data solely as necessary to provide the Services for Customer’s and such Affiliates’ benefit as provided in the Agreement (and as otherwise instructed by Customer or a User) for so long as Customer or any User uploads or stores such Customer Data in the Software.

10.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization, (b) it has, and throughout the Subscription Term, will retain, the full right, power, and authority to enter into the Agreement and perform its obligations hereunder, (c) the execution of these Master Software Subscription and Services Agreement by its representative set forth below has been duly authorized by all necessary corporate or organizational action of such party, and (d) when executed and delivered by both parties, an Order incorporating these clauses of Master Software Subscription and Services Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
10.2 Unilog Representations and Warranties. Unilog warrants (a) that the Software will perform materially in accordance with the Documentation and the Agreement, (b) to use best efforts to correct material defects that are reported by Customer or its Users as further set forth in the Service Levels (if a malfunction is due to a problem with Customer hardware or software, Unilog will so inform Customer and it will be Customer’s responsibility to obtain and pay for any repairs or modifications required for such Customer hardware or software), (c) the Services will be performed in a timely, professional, and workmanlike manner with a level of care, skill, practice, and judgment consistent with commercially reasonable industry standards and practices for similar services, using personnel with the requisite skill, experience, and qualifications, and will devote adequate resources to meet Unilog’s obligations under the Agreement, (d) the Documentation will be reasonably updated so that it continues to describe the Software and Services in all material respects, (e) to the best of its knowledge, the Software does not contain code whose purpose is to disrupt, damage, or interfere with Customer systems, software, or Customer Data, including but not limited to any virus, Trojan horse, time bomb, malware, or any other malicious code that collects data or accesses Customer’s network without Customer’s knowledge.
10.3 Customer Acknowledgements. Customer accepts responsibility for selection of the Services to achieve Customer’s intended results. Customer is solely responsible for obtaining all necessary rights and consents to enter Customer Data into the Software and hereby warrants that providing Customer Data to Unilog under the Agreement will not violate or infringe the rights of any third party.
10.4 Warranty Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS.” UNILOG, ITS LICENSORS, AND SERVICE PROVIDERS DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND UNILOG EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES. Unilog does not warrant that the Software or Subscription Services: (a) will be uninterrupted or error free or (b) will operate in combination with other hardware or software. Customer acknowledges and agrees that Unilog and its licensors are not responsible for: (i) the accuracy or integrity of any Customer Data, (ii) the performance of Customer’s or its Users’ equipment, (iii) delivery of services or connectivity provided by third parties to Customer and its Users, or (iv) any loss or corruption of Customer Data that occurs as a result of transmitting or receiving Customer Data or viruses due to Customer’s, or its Users’, connection and access to the Internet.

11.1 Unilog Indemnification. Unilog will defend Customer from and against all claims, suits and proceedings brought against Customer for direct infringement by the Services of a third party’s intellectual property rights and will indemnify and hold Customer harmless against any resulting liabilities, losses, damages and costs awarded by a court of final jurisdiction or included as part of a final settlement, as well as all reasonable attorneys’ fees incurred by Customer; provided, that Customer: (a) promptly notifies Unilog in writing of any claim, suit, or proceeding for which indemnity is claimed; (b) cooperates reasonably with Unilog at the latter’s expense; and (c) allows Unilog to control the defense or settlement thereof. Customer will have the right to participate in any defense of a claim and/or to be represented by counsel of its own choosing at its own expense. Unilog’s obligations under this section shall not apply to any claims based upon: (i) any materials, software or other information that have been altered by Customer or any party other than Unilog; (ii) the combination of the Services or any such materials, software or information with any items not provided by CX1 Showroom/MyPlumbingShowroom.com; or (iii) use of the Services or any such materials, software or information after receiving notice from Unilog that they may give rise to any such claim. This Section 6 states the sole remedies and obligations of the parties concerning intellectual property claims.
11.2 Replacement Software. Should the Software as described in section 11.1 herein, becomes, the subject of a claim of infringement of a patent, trade secret, trademark, or copyright, Unilog may (a) procure for Customer, at no additional cost to Customer, the right to continue to use the Software, (b) replace or modify the Software, at no cost to Customer, to make it non-infringing, provided that the same function is performed by the replacement or modified Software, or (c) if in Unilog’s judgment the right to continue to access the Software cannot be reasonably procured or the Software cannot reasonably be replaced or modified, terminate the Agreement (or the applicable Order) and grant Customer a pro-rated refund of any advance Fees paid applicable to the remainder of the Subscription Term. This Section 11 states the entire liability of Unilog with respect to infringement by Unilog software, or any parts thereof, and Unilog shall have no additional liability with respect to any alleged or proven infringement.
11.3 Customer Indemnification. Customer, on behalf of itself and its agents, will indemnify and hold harmless Unilog and its Affiliates, and their officers, directors, employees, agents, consultants and contractors (a “Unilog Indemnity”) from and against any claim, lawsuit or cause of action (including attorney fees and costs) brought by a third party against a Unilog Indemnity to the extent that it is (a) based on a claim regarding the access to the Software or Services in violation of this Agreement, an Order or the Documentation; (b) based on a breach of any express warranty contained in this Agreement; or (c) in violation of any third party intellectual property right or confidential information. Except to the extent that Customer fails to defend Unilog as required herein, Customer shall have the right to control the defense of all such claims, lawsuits, and other proceedings. Except to the extent that Customer fails to defend Unilog as required herein, Unilog shall not settle any such claim, lawsuit, or proceeding without Customer’s prior approval, and Customer shall have no liability for any such unapproved settlement so made.

13.1 Public Announcements. Unless otherwise agreed by the parties in writing, Customer grants Unilog the right to use Customer’s name, logo, trademarks, quotes, and/or trade names in press releases, product brochures, sales presentations, financial reports, webinars, and on its websites indicating that Customer is a customer of Unilog. All other public statements or releases require the mutual consent of the parties.
13.2 Relationship of the Parties. The parties agree they are independent parties. Neither party shall be considered to be a partner, joint venture, employer, or employee of the other under the Agreement. The Agreement creates no agency in either party, and neither party has any authority whatsoever to bind the other party in any transaction or make any representations on behalf of the other party.
13.3 Notice. Any notice or demand which is required to be given under the Agreement will be deemed to have been sufficiently given and received for all purposes when delivered by hand, email, or courier, or five (5) days after being sent by certified or registered mail, postage and charges prepaid, return receipt requested, to the address, or the e-mail address identified in this Agreement herein, and to the attention of such other person(s) or officer(s) as either party may designate by written notice.
13.4 Governing Law & Dispute Resolution. Choice of law and venue are detailed in the Order Form.
13.5 Assignment. Assignment terms are set forth in the Order Form.
13.6 Force Majeure. Neither party shall be responsible for any failure to perform its obligations under this Agreement (other than obligations to pay money) caused by an event beyond its reasonable control, including but not limited to, wars, riots, labor strikes, natural disasters, the infrastructure of the Internet, or any law, regulation, ordinance or other act or order of any court, government, or governmental agency. Any delays resulting from Customer’s failure to perform or fulfill its responsibilities (such as not having systems ready or failing to provide necessary data) will not affect the term of this Agreement or the payment schedule.
13.7 Injunctive Relief. Each party acknowledges and agrees that a breach or threatened breach by either party of any of its obligations under Sections 4 or 7 will cause immediate and irreparable harm to the non-breaching party for which monetary damages may not constitute an adequate remedy. Accordingly, the breaching party acknowledges and agrees that the non-breaching party shall be entitled to injunctive relief for the breaching party’s obligations herein, without the non-breaching party having to prove actual damages and without the posting of bond or other security. Such remedy shall not be deemed to be the exclusive remedy for the breaching party’s breach of the Agreement but shall be in addition to all other remedies available to the non-breaching party at law or in equity.
13.8 Further Assurances. The parties shall reasonably cooperate with each other to provide such further assurances as may be reasonably required to better evidence and reflect, or to show the ability to carry out the intent, purposes, and obligations of the Agreement.
13.9 Entire Agreement. On the Effective Date, the Agreement supersedes all previous discussions, negotiations, understandings, and agreements between the parties with respect to its subject matter, including any non-disclosure agreements and/or obligations which will be expressly superseded in their entirety by this Agreement. No oral statements or material not specifically incorporated herein will be of any force and effect. With the exception of any terms or conditions associated with additional Services available for purchase via Unilog’s website that have been accepted or acknowledged (electronically or otherwise) by Customer or a User, no changes in or additions to these Master Terms and Conditions will be recognized unless incorporated herein by amendment and signed by duly authorized representatives of both parties. The application of Customer’s terms and conditions in any purchase order are hereby expressly excluded and objected to by Unilog. If there is any inconsistency between the terms of this Agreement and the terms of any Orders or other documents referenced in this Agreement or an Order, this Agreement shall have priority and then the express terms of an Order.
13.10 Waiver. The waiver by either party of a breach or violation of any provision of the Agreement will not operate as, or be construed to be, a waiver of any subsequent breach of the same or any other provision hereof.
13.11 Unenforceability. In the event any provision of the Agreement is held to be unenforceable for any reason, the unenforceability thereof will not affect the remainder of the Agreement, which will remain in full force and effect and enforceable in accordance with its terms. With respect to any unenforceable provision, the applicable arbitrator or court shall deem the provision modified to the extent necessary, in such adjudicator’s opinion, to render such term or provision enforceable, and the rights and obligations of the parties will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties set forth herein.