HomeMy WebLinkAbout195194 TOOLWATCH CORPORATION - CONTRACT - CONTRACT - 32121Master Subscription Agreement
ToolWatch Enterprise
1 Overview
ToolWatch Corpor tign ( ToolWatch) and
(hereafter
referred to A Subscriber ) enter into this Agreement
as of the Effective Date to govern the Subscribers
use of ToolWatch s online service including offline
components (collectively the Service )
ToolWatch will provide the Subscriber with use of
the Service including a smart client interface and
data encryption access and storage Signing this
agreement or use of the Service shall be deemed to
be the Subscribers agreement to abide by this
Agreement
2 Definitions
As used in this Agreement and in any Order
Agreements now or hereafter associated herewith the
following terms shall have the meanings set forth
below Other defined terms shall have the meanings
set forth elsewhere in this Agreement
a Agreement means the Master Subscription
Agreement and each Order Agreement as
the same may be amended from time to
time
b Content means the audio and visual
information documents software products
and services contained or made available to
Subscriber in the course of using the
Service
c Customer Data means any data
information or material provided or
submitted by Subscriber to the Service in the
course of using the Service
d Effective Date means the latest date
indicated next to the signature of either the
Subscriber or ToolWatch below
e initial Term means the initial period
during which Subscriber is obligated to pay
for the Service which shall be equal in
duration to the billing frequency selected by
Subscriber during the subscription process
(e g if the billing frequency is annually the
Initial Term is the first year)
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
License Administrator(s) means those Users
designated by Subscriber who are authonzed to
purchase licenses online using the Online Order
Center or by executing written Order
Agreements and to create User accounts and
otherwise administer Subscriber s use of the
Service
h License Term(s) means the penod(s) during
which a specified number of Users are licensed
to use the Service pursuant to the Order
Agreement(s)
Order Agreement(s) means the form
evidencing the initial subscription for the Service
and any subsequent Order Agreements submitted
online or in written form specifying among
other things the number of licenses and other
services contracted for the applicable fees the
billing period and other charges as agreed to
between the parties each such Order Agreement
to be incorporated into and to become a part of
this Agreement In the event of any conflict
between the terms of this Agreement and the
terms of any such Order Agreement the terms of
this Agreement shall prevail and be controlling
Online Order Center means ToolWatchs
online application that allows the License
Adnumstrator designated by Subscriber to
among other things add additional Users to the
Service
k ToolWatch means collectively ToolWatch
Corporation an Illinois corporation having its
principal place of business at 10303 E Dry
Creek Road Suite 250 Englewood CO 80112
Master Subscnphon Agreement — ToolWatch Enterprise v01_15_08C_CityOfFortCollrns Page 1 of 10
Other Documents No text or information set forth
on any other purchase order preprinted form or
document (other than an Order Agreement if
applicable) shall add to or vary the terms and
conditions of this Agreement
Invalid of Unenforceable Provisions If any
Provision of this Agreement is held by a court of
competent )unsdiction to be invalid or unenforceable
then such provision(s) shall be construed as nearly as
possible to reflect the intentions of the invalid or
unenforceable provision(s) with all other provisions
remaining in full force and effect
Relationship of the Parties No joint venture
partnership employment or agency relationship
exists between Subscriber and ToolWatch as a result
of this Agreement or use of the Service
Entire Agreement, Integrated Writing This
Agreement together with any applicable Order
Agreement comprises the entire agreement between
Subscriber and ToolWatch and supersedes all prior or
contemporaneous negotiations discussions or
agreements whether written or oral between the
parties regarding the subject matter contained herein
Headings Headings contained in this Agreement are for
ease of reference only and have no legal effect
Survival of Certain Provisions on Termination The
Provisions of this Agreement which by their terms
should survive termination of this Agreement to protect
the rights and business interests of any party shall survive
the termination of this Agreement for any reason All
other rights and obligations of the parties shall cease upon
termination of this Agreement
No Third Party Beneficiaries Nothing in this Agreement
is intended to or shall create any third party
beneficiaries whether intended or incidental and no part)
shall make any representations to the contrary
Binding Effect. Authority to Execute Agreement This
Agreement shall be binding upon Subscriber its permitted
successors and assigns and each User This Agreement
has been executed by the undersigned agent of
Subscriber who represents and warrants that he or she
has full authority to enter into this Agreement on
Subscriber s behalf
In witness whereof the parties have executed this Master Subscription Agreement as of the respective dates set forth
below to evidence their agreement to be bound by the terms hereof
Title V,�-Lfi 4,t SXilg4
Date _ ( % i se/ D Y
i
ToolWatch Corporation
Signature
Name
Title
Date
Master Subscription Agreement—ToolWatch Enterprise v01_15_08C_CrtyOtFortCollms Page 10 of ]0
TOOIWatch Order Agreement
Master Subscription Agreement Information
Subscrlber Company
City of Fort Collins
ToolWatch Representative
Mike Cummings
MSA Number
7131
Order Information
Order Number 17131 01
Subscription Stan Date 1/31/2008
Subscription End Date 1/30/2013
Subscription Term (years days) 1 year plus four (4) 1 year optional renewals
Total Order Amount $22 041 54
Order Type X New Subscription Add on Subscription Renew Expinng Subscription
Product X Enterprise Subscription BE w/Enterprise Upgrade SE Subscription
Billing Information
Billing Company Name
City of Fort Collins
Billing Name
Jim Hume
Billing Address
413 S Bryan Street
Fort Collins CO 80521
Billing Phone
970 221 6128
Billing Email
Pa ent Method
Payment Terms
Ihume@fcgov com
Check X Purchase Order Credit Card COD Other
Net 30
Special Terms
ToolWatch Order Agreement v08 15_07
— Page 1 of 2
Product
Item Number
aty
List Price
ea
Subtotal
Less
Discount
Ext
Term
Total
ToolWatch Enterprise
ProvisioningFee
ToolWatch Enterprise Full
User
ToolWatch Enterpnse Pro
User
SA ENT PROV
SA ENT FULL
SA ENT PRO
1
2
3
$5 000 00
$1 50000
$1 20000
$5 000 00
$3 000 00
$3 600 00
100°/
25 /
n/a
0
$3 000 00
$2 700 00
Time
5 Year
5 Year
$11 25000
$13 500 00
Credit Remaining CAP
CAP CONV
($2 708 46)
($2 708 46)
($2 708 46)
n/a
($2 708 46)
Shipping/Handling
n/a
Sales/VAT Tax
TBD
Total
$22 01114
Invoice te
Invoice Amount
Net Terms
Special Instructions
1/31/2008
$2 241 54
Net 30
Note Amounts shown do not Include sales tax Sales tax If applicable
will be added on the Invoice Please remit funds once you receive the
}coal invoice from ToolWatch
1/30/2009
1/30/2010
$4 950 00
$4 950 00
1 /30/2011
$4 950 00
1 /30/2012
$4 950 00
Total
$22 041 54
ToolWatch s Master Subscription Agreement agreed to between Customer and ToolWatch upon commencement of service shall
govern use of subscriptions products and services ordered by Customer hereunder in all cases In the event of any conflict
between the Master Subscription Agreement and any other document exchanged between the Customer and ToolWatch the
Master Services Agreement shall govern and be controlling Prices shown do not include any taxes that may apply Any such taxes
are the responsibility of the customer
Additional license subscriptions purchased during the proposed term must be cotermmous with the original subscription term
This agreement will automatically renew annually for four additional one (1) year terms at the discount indicated above unless
cancelled by customer as detailed in Paragraph 14 of the Master Subscription Agreement Unless future renewals are prepaid the
renewal costs included above are estimates The actual costs will be based on the then current license costs less any negotiated
discounts
Professional services if cancelled or rescheduled by customer are subject to a 15% fee plus actual expenses incurred as a result
Any travel expenses associated with professional services listed above are estimates Customer will be billed actual expenses
once travel has been completed
ToolWatch
Signature
Name
Title
Date
ToolWatch Order Agreement v08 15 07
City of Fort Collins
Signature
Name
Title t2r(2-
dFPL)��,vl
Date J � /6(�
Page 2 of 2
ToolWatch Technology means all of
ToolWatchs proprietary technology
(including software hardware products
processes algorithms user interfaces know
how techniques designs and other tangible
or intangible technical material or
information) made available to Subscriber
by ToolWatch in providing the Service
including any Intellectual Property Rights of
ToolWatch therein
in Service(s) means the specific edition (i e
Pro Enterprise etc) of ToolWatchs
software applications (excluding ToolWatch
SE) data analysis or other corporate ERP
services identified during the ordering
process developed operated and
maintained by ToolWatch accessible via
http //www mytoolwatch com or another
designated web site or IP address or
ancillary online or offline products and
services provided to Subscriber by
ToolWatch to which Subscriber is being
granted access under this Agreement
including the ToolWatch Technology and
the Content
Subscriber means the customer that signs
this Agreement and shall include for
purposes of all representations warranties
and agreements hereunder all Users
designated by such Subscriber
o User(s) means Subscriber s employees
representatives consultants contractors or
agents who are authorized to use the Service
and have been supplied user identifications
and passwords by Subscriber (or by
ToolWatch at Subscriber s request)
3 Privacy & Security Disclosure
ToolWatch s privacy and security policies which
shall apply to the relationship created between
Subscriber and ToolWatch hereunder and which are
hereby incorporated herein and made a part of this
Agreement may be viewed at
http //www mytoolwatch com ToolWatch reserves
the right to modify its privacy and security policies in
its reasonable discretion from time to time by posting
changes thereto on the ToolWatch website with such
changes to become effective as of the time of posting
Individual Users when they initially log in will be
asked whether or not they wish to receive marketing
and other non critical Service related
communications from ToolWatch from time to time
They may opt out of receiving such communications at
that time or at any subsequent time by changing their
preference under the Personal Setup page within the
website through which the Service is accessed by
Subscriber Because the Service is a hosted online
application ToolWatch occasionally may need to notify
all Users of the Service (whether or not they have opted
out as described above) of important announcements
regarding the operation of the Service and such
notification is hereby consented to and shall not be
deemed a violation of any opt out election made by a
User
4 License Grant & Restrictions
ToolWatch hereby grants Subscriber a non exclusive
non transferable worldwide right to use the Service
solely for their own internal business purposes subject to
the terms and conditions of this Agreement All rights not
expressly granted to Subscriber are reserved by
ToolWatch and its licensors
Subscriber may not allow access to the Service to an
employee representative consultant contractor or agent
of/to a direct competitor of ToolWatch except with
ToolWatch s prior written consent For purposes hereof a
direct competitor of ToolWatch shall be deemed to
include but not be limited to any person firm company
or other organization that offers or is proposing to offer a
service that would or could compete with or replace the
Service whether such competing service is offered with
or without charge by the provider In addition Subscriber
may not access the Service for purposes of monitoring its
availability performance or functionality or for any other
benchmarking or competitive purpose
Subscriber shall not (i) license sublicense sell resell
transfer assign distribute or otherwise commercially
exploit or make available to any third party the Service or
the Content in any way (n) modify or make derivative
works based upon the Service or the Content (in) create
Internet links to the Service or frame or minor any
Content on any other server or wireless or Internet based
device or (iv) reverse engineer or access the Service in
order to (a) build a competitive product or service (b)
build a product based on incorporating or using similar
ideas features functions or graphics as those of the
Service or (c) copy any ideas features functions or
graphics of the Service
Subscriber may use the Service only for their internal
business purposes and shall not (i) send spam or
otherwise duplicative or unsolicited messages in violation
of applicable laws (u) send or store infringing obscene
Master Subscription Agreement — ToolWatch Enterprise v01-15-08C_CrtyOfFortColhns Page 2 of 10
threatening libelous or otherwise unlawful or
torhous material including material harmful to
children or violative of third party privacy rights (in)
send or store material containing software viruses
worms Trojan horses tracking software or other
harmful computer code files scripts agents or
programs (iv) interfere with or disrupt the integrity
or performance of the Service or the data contained
therein or (v) attempt to gain unauthonzed access to
the Service or its related systems or networks
Certain editions of the Service offer integration
capabilities via an application programming
interface or API The number of API calls
Subscriber can make per account is limited as follows
(excluding calls resulting from use of ToolWatch
client applications)
ToolWatch Enterprise 1000 calls/day/User
(aggregated over all Users under the account) up to
an aggregate maximum of 1 000 000
calls/day/account
ToolWatch Pro 1 000 calls/day/User (aggregated
over all Users under the account) up to an aggregate
maximum of 1 000 000 calls/day/account
5 Subscriber Responsibilities
Subscriber is responsible for all activity occurring
under their User accounts and shall abide by and
require all Users to abide by all applicable local
state national and foreign laws treaties and
regulations in connection with use of the Service
including those related to data privacy international
communications and the transmission of technical or
personal data Subscriber shall (i) notify ToolWatch
immediately of any unauthorized use of any
Password or account or any other known or suspected
breach of security (n) report to ToolWatch
immediately and use reasonable efforts to stop
immediately any copying or distribution of Content
that is known or suspected by Subscriber or their
Users (ui) not impersonate another ToolWatch user
or provide false identity information to gam access to
or use the Service and (iv) refrain from introducing
data or computer code into the system used to operate
or provide the Service which data or code contains
any viruses worms Trojan horses tracking software
files scripts agents or programs containing any
harmful or illegal components These obligations
shall apply to all Users authorized by Subscriber to
access the Service or any other person who accesses
the Service under any User password issued to
Subscriber Subscriber shall take reasonable steps to
assure that all Users authorized by it to access the
Service are aware of the obligations of the Subscriber
under this Agreement and Subscriber shall be liable for
any breaches of this Agreement by any User accessing the
Service under Subscribers subscription or the rights
granted to Subscriber by ToolWatch hereunder
6 Account Information and Data
ToolWatch does not own any data information or
material that Subscriber submits to the Service in the
course of using the Service ( Customer Data )
Subscriber not ToolWatch shall have sole responsibility
for the accuracy quality integrity legality reliability
appropriateness and intellectual property ownership or
right to use of all Customer Data and ToolWatch shall
not be responsible or liable for the deletion correction
destruction damage loss or failure to store any Customer
Data caused by a User In the event this Agreement is
terminated (other than by reason of Subscriber s breach)
ToolWatch will make available to Subscriber a file of the
Customer Data within thirty (30) days of termination if so
requested at the time of termination ToolWatch reserves
the right to withhold remove and/or discard Customer
Data without further notice if ToolWatch terminates this
Agreement for cause as described in Section 17 hereof for
any breach including without limitation any such
termination because of Subscribers nonpayment Upon
termination for cause Subscriber s right to access or use
Customer Data immediately ceases and ToolWatch shall
have no obligation to maintain or forward any Customer
Data
ToolWatch shall have the right to (1) collect accumulate
amalgamate store process and use Customer Data
including manipulating such data in any manner it deems
appropriate (provided that such data does not remain
specifically identifiable to a particular subscriber or User)
and (u) use such data for any purpose ToolWatch deems
appropriate including but not limited to making such
data available for sale or otherwise to Subscriber or any
other person
An authorized User may request a download of their
Customer Data to a local computer at any time but no
more than once per 7 day period
7 Segregation of Company Data
Notwithstanding any other provision of this Agreement
and for the avoidance of doubt ToolWatch will maintain
all Customer Data in a secure and logically separate
manner (i a identified as Customer Data that is specific
to the Subscriber) from the data of ToolWatch or other
ToolWatch customers
Master Subscription Agreement — Tool Watch Enterprise v01_15_08C—C1tyOfFortCollins Page 3 of 10
8 Scheduled Maintenance Windows
ToolWatch reserves the right to perform regular
maintenance and upgrade tasks during scheduled
maintenance windows During these windows the
Service may not be available The Scheduled
Maintenance Windows are Monday to Friday I am to
5 am (MST) and Weekends from I am to 3 am
(MST)
9 Unplanned Service Interruptions
In the event of an unplanned event that impacts the
availability or performance of the Service
ToolWatch will make all commercially reasonable
efforts to restore service/performance of the Service
as quickly as possible Should any unplanned
interruption of service be expected to be of
significant duration ToolWatch will message users
via an agreed upon format of the event and
anticipated resolution time including periodic
updates as appropriate
10 Intellectual Property Ownership
ToolWatch alone (and its licensors where applicable)
shall own all right title and interest including all
related Intellectual Property Rights in and to the
TOOIWatch Technology the Content and the Service
and any suggestions ideas enhancement requests
feedback recommendations or other information
provided by Subscriber or any other party relating to
the Service and Subscriber on behalf of itself and its
Users hereby conveys and transfers to ToolWatch all
rights in and to such suggestions ideas enhancement
requests feedback recommendations or other
information provided by Subscriber or its Users
relating to the Service in consideration of the rights
granted to Subscriber by ToolWatch hereunder This
Agreement is not a sale and does not convey to
Subscriber any rights of ownership in or related to the
Service the ToolWatch Technology or the
Intellectual Property Rights owned by ToolWatch
The ToolWatch name the ToolWatch logo and the
product names associated with the Service are
trademarks of ToolWatch or third parties and no
right or license is granted to use them
I Third Party Interactions
During use of the Service Subscriber may enter into
correspondence with purchase goods and/or services
from or participate in promotions of third party
advertisers or sponsors showing their goods and/or
services through the Service Any such activity and
any terms conditions warranties or representations
associated with such activity is solely between Subscriber
and the applicable third party ToolWatch and its
licensors shall have no liability obligation or
responsibility for any such correspondence purchase or
Promotion between Subscriber and any such third party
ToolWatch does not endorse any sites on the Internet that
are linked through the Service ToolWatch provides these
links to Subscriber only as a matter of convenience and
in no event shall ToolWatch or its licensors be
responsible for any content products or other materials
on or available from such sites ToolWatch provides the
Service to Subscriber pursuant to the terms and conditions
of this Agreement Subscriber recognizes however that
certain third party providers of ancillary software
hardware or services may require Subscriber s agreement
to additional or different license or other terms prior to
their use of or access to such software hardware or
services and Subscriber shall be solely responsible for
compliance with the terms thereof and for any
consequences to Subscriber resulting from use by
Subscriber thereof
12 Charges and Payment of Fees
Subscriber shall pay all fees or charges to then account in
accordance with the fees charges and billing terms in
effect at the time a fee or charge is due and payable The
applicable fees charges and billing terms are outlined in
the related Order Agreement(s) Payments must be made
annually consistent with the Initial Term or as otherwise
mutually agreed upon and documented in an Order
Agreement All payment obligations are non cancelable
and all amounts paid are nonrefundable Subscriber is
responsible for paying for all User licenses ordered for the
entire License Term whether or not such User licenses
are actively used Subscriber must provide ToolWatch
with valid credit card check or a purchase order
approved by ToolWatch as a condition to signing up for
and accessing the Service An authorized License
Administrator may add licenses by executing an
additional written Order Agreement or using the Online
Order Center Added licenses will be subject to the
following (i) added licenses will be coterminous with the
preexisting License Term (either Initial Term or renewal
term) (u) the license fee for the added licenses will be the
then current generally applicable license fee unless
explicitly outlines otherwise in the related Order
Agreement and (in) licenses added in the middle of a
billing year will be charged for the number of days
remaining in the billing year on a pro rated basis All
pricing terms are confidential and Subscriber agrees not
to disclose them to any third party except as required by
law
Master Subscription Agreement — ToolWatch Enterprise v01_15_08C_CityOfFortColhns Page 4 of 10
13 Excess Data Storage Fees
The maximum disk storage space provided to
Subscriber at no additional charge is (1) 10 MB per
User license for ToolWatch Pro (u) 20 MB per User
license for ToolWatch Enterprise ToolWatch will
use reasonable efforts to notify Subscriber when the
average storage user per license reaches
approximately 90% of the maximum If the average
storage per user license exceeds 100% of the
maximum ToolWatch will send an invoice to
Subscriber for the excess storage based on the then
current storage fees ToolWatch reserves the right to
establish or modify its general practices and limits
relating to storage of Customer Data
14 Billing and Renewal
ToolWatch shall charge and collect all amounts due
for use of the Service in advance
[NOTE Subscriber must initial one of the
/ followin options, as desired
` , `�matic Renewal Option
ToolWatch will automatically renew and bill
Subscribers credit card (if such method of payment
has been authorized by Subscriber) or issue an
invoice to Subscriber each year on the anniversary
for annual licenses or as otherwise mutually agreed
upon between ToolWatch and Subscriber The
renewal charge will be equal to the then current
number of total User licenses times the related
license fee in effect during the prior term unless
ToolWatch has provided Subscriber with written
notice of a fee increase at least sixty (60) days prior
to such renewal date which change shall be effective
upon renewal and thereafter until further changed by
ToolWatch in accordance with this procedure
Written Renewal Option
ToolWatch will renew and bill Subscribers credit
cud (if such method of payment has been authorized
by Subscriber) or issue an invoice to Subscriber each
year on the anniversary for annual licenses or as
otherwise mutually agreed upon between ToolWatch
and Subscriber only upon a written request by
Subscriber to renew this Agreement and delivered to
ToolWatch no less than thirty (30) days prior to such
renewal date The renewal charge will be equal to the
then current number of total User licenses times the
related license fee in effect during the prior term
unless ToolWatch has provided Subscriber with
written notice of a fee increase at least sixty (60) days
prior to such renewal date which change shall be
effective upon renewal and thereafter until further
changed by ToolWatch in accordance with this procedure
If Subscriber fails to timely renew this Agreement
ToolWatch may terminate the Service on the renewal
date and Subscriber shall be subject to a $2 500
reinstatement fee and up to a 72 hour delay In reinstating
service from the time Subscriber requests reinstatement
Provisions Applicable to Both Options
Fees for other services provided to Subscriber will be
charged to Subscriber on an as quoted basis Tool Watch s
fees are exclusive of all taxes levies or duties imposed
by taxing authorities and Subscriber shall be solely
responsible for payment of all such taxes levies or
duties excluding only United States (federal or state)
taxes based solely on ToolWatchs income provided
however that ToolWatch may collect and pay such taxes
levies or duties owing by Subscriber as may be required
by law rule or regulation
Subscriber agrees to provide ToolWatch with complete
and accurate billing and contact information This
information includes Subscribers legal company name
street address a mail address and name and telephone
number of an authorized billing contact and License
Administrator Subscriber agrees to update this
Information within 30 days of any change to it If the
contact information Subscriber or any User provides to
ToolWatch is false or fraudulent ToolWatch shall be
entitled without further notice or action on its part to
immediately terminate Subscriber s access to the Service
in addition to any other remedies available to ToolWatch
under applicable law
Unless ToolWatch in its discretion determines otherwise
(i) entities with headquarters and a majority of users
resident in the United States will be billed In U S dollars
and shall be subject to US payment terms and pricing
( US Customers ) and (u) all other entities will be
billed in U S dollars Euros or local currency and shall be
subject to either U S or non U S payment terms and
pricing at the discretion of ToolWatch ( Non U S
Customers )
If Subscriber believes any invoice rendered to it
hereunder is incorrect Subscriber must contact
ToolWatch In writing within 60 days of the invoice date
of the invoice containing the amount in question to be
eligible to receive an adjustment or credit Any delay by
Subscriber to so notify ToolWatch beyond such 60 day
period shall constitute acceptance of such invoice and the
amounts stated thereon by Subscriber Upon receipt of
any written objection from Subscriber ToolWatch shall
Promptly investigate the item in dispute and shall
Master Subscription Agreement — ToolWatch Enterprise v0l_15_08C_CityOfFortCollins Page 5 of 10
thereafter notify Subscriber in writing of the 17 Termination for Cause
disposition of the dispute by ToolWatch
15 Non Payment and Suspension
In addition to any other rights granted to ToolWatch
herein ToolWatch reserves the right to suspend
Subscriber s access to the Service if Subscriber s
account becomes delinquent (falls into arrears)
Subscriber will continue to be charged for User
licenses during any period of suspension If
Subscriber or ToolWatch initiates termination of this
Agreement Subscriber will be obligated to pay the
balance due on Subscriber s account computed in
accordance with the Charges and Payment of Fees
section above Subscriber agrees that Tool Watch may
charge such unpaid fees to Subscriber s credit card or
otherwise bill Subscriber for such unpaid fees
ToolWatch reserves the right to impose a
reconnection fee in the event Subscriber is suspended
and thereafter requests renewed access to the Service
Subscriber agrees and acknowledges that ToolWatch
has no obligation to retain Customer Data and that
such Customer Data may be irretrievably deleted
once Subscribers account is delinquent for 30 days
or more
16 Termination upon Expiration/Reduction in
Number of Licenses
This Agreement commences on the Effective Date
and continues until all User subscriptions granted in
accordance with this Agreement have expired or been
terminated User subscriptions commence on the
start date specified in the relevant Order Agreement
and continue for the subscription term specified
therein User subscriptions shall renew for additional
periods of one (1) year in accordance with the
renewal option elected by Subscriber in Section 14
hereof at the price in effect at the time of renewal In
the case of free trials notifications provided through
the Service indicating the remaining number of days
in the free trial shall constitute notice of termination
In the event this Agreement is terminated (other than
by reason of Subscribers breach) ToolWatch will
make available to Subscriber a file of the Customer
Data within thirty (30) days of termination if
Subscriber so requests at the time of termination
Subscriber agrees and acknowledges that ToolWatch
has no obligation to retain the Customer Data and
may delete such Customer Data 90 days after
termination of this Agreement for any reason
Any breach of Subscriber s payment obligations
unauthorized use of the ToolWatch Technology or
Service or other failure to comply with the terms of this
Agreement will be deemed a breach of this Agreement if
such breach is not cured by Subscriber within ten (10)
days of written notice of such breach provided by
ToolWatch in accordance with Section 26 hereof
Following any such breach ToolWatch in its sole
discretion may terminate all Subscriber s passwords
accounts or use of the Service Subscriber agrees and
acknowledges that ToolWatch has no obligation to retain
the Customer Data and may delete such Customer Data
(resulting in irretrievable loss of such Customer Data) if
Subscriber has breached this Agreement including but
not limited to failure to pay outstanding fees and such
breach has not been cured within ninety (90) days of
notice to Subscriber of such breach In addition
ToolWatch may terminate a free account at any time in its
sole discretion and may delete all data associated with
such free account immediately upon termination
Subscriber may terminate this Agreement for cause upon
any breach of ToolWatch s obligations hereunder if such
breach is not cured by ToolWatch within thirty (30) days
of written notice of such breach provided by Subscriber in
accordance with Section 26 hereof Upon such
termination ToolWatch will reimburse Subscriber for
subscription fees paid by Subscriber hereunder for the
unused portion of the remaining term of this Agreement
18 Representations & Warranties
Each party represents and warrants that it has the legal
power and authority to enter into this Agreement
ToolWatch represents and warrants that as to those
aspects of the Service which are under its sole and
exclusive control (i) the Service will operate in a secure
and timely manner (n) stored Customer Data will remain
accurate and reliable and (in) material errors and/or
defects in the Service will be corrected all in a manner
consistent with general industry standards reasonably
applicable to the provision of similar services by
companies similarly situated to ToolWatch and that the
Service will perform substantially in accordance with
ToolWatch s online help documentation under normal
use and circumstances
Subscriber represents and warrants that Subscriber has not
falsely identified themselves nor provided any false
information to gam access to the Service and that their
billing information is correct
19 Mutual Indemnification
Master Subscription Agreement— ToolWatch Enterprise v01_15_08C_CityOfFortCollms Page 6 of 10
Subscriber shall indemnify and hold ToolWatch its
licensors and each such partys parent organizations
subsidiaries affiliates officers directors employees
attorneys and agents harmless from and against any
and all claims costs damages losses liabilities and
expenses (including attorneys fees and costs) arising
out of or in connection with (r) a claim alleging that
use of the Customer Data infringes the rights of or
has caused harm to a third party (n) a claim which
if true would constitute a violation by Subscriber of
their representations and warranties or (in) a claim
arising from the breach by Subscriber or their Users
of this Agreement provided in any such case that
ToolWatch (a) gives written notice of the claim
Promptly to Subscriber (b) gives Subscriber sole
control of the defense and settlement of the claim
(provided that Subscriber may not settle or defend
any claim unless Subscriber unconditionally releases
ToolWatch of all liability to Subscriber and such
settlement does not affect ToolWatcha business or
Service) (c) provides to Subscriber all available
information and assistance and (d) has not
compromised or settled such claim without the prior
written consent of Subscriber
ToolWatch shall indemnify and hold Subscriber and
their parent organizations subsidiaries affiliates
officers directors employees attorneys and agents
harmless from and against any and all claims costs
damages losses liabilities and expenses (including
attorneys fees and costs) arising out of or in
connection with (i) a claim alleging that the Service
directly infringes a copyright a U S patent issued as
of the Effective Date or a trademark of a third party
(u) a claim, which if true would constitute a
violation by ToolWatch of its representations or
warranties or (in) a claim arising from breach of this
Agreement by ToolWatch provided that Subscriber
(a) promptly gives written notice of the claim to
ToolWatch (b) gives ToolWatch sole control of the
defense and settlement of the claim (provided that
ToolWatch may not settle or defend any claim unless
it unconditionally releases Subscriber of all liability)
(c) provides to ToolWatch all available information
and assistance and (d) has not compromised or
settled such claim without the prior written consent
of ToolWatch ToolWatch shall have no
indemnification obligation and Subscriber shall
indemnify ToolWatch pursuant to this Agreement
for claims arising from any infringement arising
solely from the combination of the Service with any
of Subscribers products service hardware or
business process(s) Notwithstanding any other
provision of this Agreement to the contrary no term
or condition of this Agreement shall be construed or
interpreted as a waiver of any provision of the Colorado
Governmental Immunity Act Section 24 10 101 et seq
C R S as now or hereafter amended
20 Disclaimer of Warranties
EXCEPT AS SPECIFICALLY SET FORTH IN
SECTION 18 HEREOF TOOLWATCH AND ITS
LICENSORS MAKE NO REPRESENTATION
WARRANTY OR GUARANTY AS TO THE
RELIABILITY TIMELINESS QUALITY
SUITABILITY TRUTH AVAILABILITY
ACCURACY OR COMPLETENESS OF THE SERVICE
OR ANY CONTENT AND DO NOT REPRESENT OR
WARRANT THAT (A) THE USE OF THE SERVICE
WILL BE SECURE TIMELY UNINTERRUPTED OR
ERROR FREE OR OPERATE IN COMBINATION
WITH ANY OTHER HARDWARE SOFTWARE
SYSTEM OR DATA (B) THE SERVICE WILL MEET
YOUR REQUIREMENTS OR EXPECTATIONS (C)
ANY STORED DATA WILL BE ACCURATE OR
RELIABLE (D) THE QUALITY OF ANY PRODUCTS
SERVICES INFORMATION OR OTHER MATERIAL
PURCHASED OR OBTAINED BY SUBSCRIBER
THROUGH THE SERVICE WILL MEET YOUR
REQUIREMENTS OR EXPECTATIONS (E) ERRORS
OR DEFECTS WILL BE CORRECTED OR (F) THE
SERVICE OR THE SERVER(S) THAT MAKE THE
SERVICE AVAILABLE ARE FREE OF VIRUSES OR
OTHER HARMFUL COMPONENTS EXCEPT AS
SPECIFICALLY SET FORTH IN SECTION 18
HEREOF OR ELSEWHERE IN THIS AGREEMENT
THE SERVICE AND ALL CONTENT IS PROVIDED
TO SUBSCRIBER 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 OR NON
INFRINGEMENT OF THIRD PARTY RIGHTS ARE
HEREBY DISCLAIMED TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW BY
TOOLWATCH AND ITS LICENSORS
21 Internet Delays
TOOLWATCHS SERVICES MAY BE SUBJECT TO
LIMITATIONS DELAYS AND OTHER PROBLEMS
INHERENT IN THE USE OF THE INTERNET AND
ELECTRONIC COMMUNICATIONS TOOLWATCH
IS NOT RESPONSIBLE FOR ANY DELAYS
DELIVERY FAILURES OR OTHER DAMAGE
RESULTING FROM SUCH PROBLEMS
Master Subscription Agreement— ToolWatch Enterprise v01_15_08C_CityOtFortCollms Page 7 of 10
22 Limitation of Liability
IN NO EVENT SHALL EITHER PARTY
AGGREGATE LIABILITY EXCEED THE
AMOUNTS ACTUALLY PAID BY AND/OR DUE
FROM SUBSCRIBER IN THE TWELVE (12)
MONTH PERIOD IMMEDIATELY PRECEDING
THE EVENT GIVING RISE TO SUCH CLAIM 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 A SIMILAR TYPE OR
KIND (INCLUDING DAMAGE FOR LOSS OF
DATA REVENUE PROFITS USE OR OTHER
ECONOMIC ADVANTAGE) ARISING OUT OF
OR IN ANY WAY CONNECTED WITH THIS
SERVICE INCLUDING BUT NOT LIMITED TO
THE USE OR INABILITY TO USE THE
SERVICE OR FOR ANY CONTENT OBTAINED
FROM OR THROUGH THE SERVICE ANY
INTERRUPTION INACCURACY ERROR OR
OMISSION REGARDLESS OF CAUSE IN THE
CONTENT EVEN IF THE PARTY FROM WHICH
DAMAGES ARE BEING SOUGHT OR SUCH
PARTYS LICENSORS HAVE BEEN
PREVIOUSLY ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES
23 Force MaJeure
Neither Party will be liable for any failure to perform
any of its obligations hereunder other than payment
obligations by reason of any matters beyond such
Party s reasonable control including but not limited
to fire explosions earthquakes storms flood wind
drought or other acts of God or the elements acts
decrees delays or failures to act by civil military or
other governmental authorities nots insurrections
terrorism sabotage or war court orders strikes
lockouts and labor disputes destruction of or
damage or casualty due to one or more of the reasons
of the matters described above in this Section to any
Third Party equipment facilities or other property or
suspension curtailment or other disruption of utilities
(each a Force MaJeure Event ) provided that the
affected Party provides the other Party prompt
written notice of the applicable circumstance and
uses commercially reasonable efforts to re commence
performance as promptly as possible and provided
further that if the affected Party s performance is
delayed for a period of more than sixty (60) days by
reason of any Force MaJeure Event then the other
Party may at its option by written notice to the
affected Party either (a) terminate this Agreement
or (b) extend the Term (or as applicable the
Transition Period) of this Agreement for a number of days
equal to the duration of the affected Party s non
performance at no additional cost to Subscriber provided
in each case of subsections (a) or (b) that such written
notice is received either during or within thirty (30) days
of an occurrence of a Force Maleure Event that has not
then continued but eventually does continue for more
than sixty (60) days
24 Additional Rights
Certain states and/or Jurisdictions do not allow the
exclusion of implied warranties or limitation of liability
for incidental consequential or certain other types of
damages so the exclusions set forth above may not apply
to Subscriber
25 Local Laws and Export Control
The Service may provide services and use software and
technology that may be subject to United States export
controls administered by the U S Department of
Commerce the United States Department of Treasury
Office of Foreign Assets Control and other U S agencies
and the export control regulations of Switzerland and the
European Union Subscriber acknowledges and agrees
that the Service shall not be used and none of the
underlying information software or technology may be
transferred or otherwise exported or reexported to
countries as to which the United States Switzerland
and/or the European Union maintains an embargo
(collectively Embargoed Countries ) or to or by a
national or resident thereof or any person or entity on the
U S Department of Treasurys List of Specially
Designated Nationals or the US Department of
Commerces Table of Denial Orders (collectively
Designated Nationals ) The lists of Embargoed
Countries and Designated Nationals are subject to change
without notice By using the Service Subscriber
represents and warrants that neither Subscriber nor any of
its Users are located in under the control of or a national
or resident of an Embargoed Country or Designated
National Subscriber agrees to comply strictly with all
U S Swiss and European Union export laws and assume
sole responsibility for obtaining licenses to export or re
export as may be required
This site may use encryption technology that is subject to
licensing requirements under the U S Export
Administration Regulations 15 C F R Parts 730 774 and
Council Regulation (EC) No 1334/2000
ToolWatch and its licensors make no representation that
the Service is appropriate or available for use in other
locations If Subscriber uses the Service from outside the
United States of America Switzerland and/or the
Master Subscription Agreement — Tool Watch Enterprise v0l_15-08C_CityOlFortCollms Page 8 of 10
European Union Subscriber is solely responsible for
compliance with all applicable laws including
without limitation export and import regulations of
other countries Any diversion of the Content
contrary to United States Swiss or European Union
(including European Union Member States) law is
prohibited
Subscriber shall not use the Service or any Content
nor any information acquired through the use of the
Service for nuclear activities chemical or biological
weapons or missile projects unless specifically
authorized by the United States government for such
purposes
26 Notices
With the exception of notice for breach (which must
be given in accordance with clause (c) below)
ToolWatch may provide notice to Subscriber by (a)
posting a general notice on the website through
which the Service is accessed (which shall only apply
to notices of a general nature applicable to all
subscribers to the Service) (b) electronic mail to
Subscriber s e mail address on record in ToolWatch s
account information records or (c) by written
communication sent by first class mail or pre paid
Post to Subscriber s address on record in ToolWatch s
account information records Such notice shall be
deemed to have been given as applicable upon
posting on the website (for notices posted on the
website in accordance with clause (a) above) the
passage of one (1) business day after sending (if sent
by email in accordance with clause (b) above) or the
passage of four (4) business days after mailing or
posting (if sent by first class mail or pre paid post in
accordance with clause (c) above)
Subscriber may give notice to ToolWatch (such
notice shall be deemed given when received by
ToolWatch) at any time by any of the following
letter sent by confirmed facsimile to ToolWatch at
the following fax number (303) 799 0209 (for U S
Customers and Non U S Customers) letter delivered
by nationally recognized overnight delivery service
or first class postage prepaid mail to ToolWatch at
the following address ToolWatch Corporation
10303 E Dry Creek Road Suite 250 Englewood
CO 80112 addressed to the attention of Controller
27 Assignment Change in Control
This Agreement may not be assigned by Subscriber
without the prior written approval of ToolWatch but
may be assigned without Subscribers consent by
ToolWatch to (i) a parent or subsidiary (u) an
acquirer of assets or (in) a successor by merger Any
purported assignment in violation of this section shall be
void Any actual or proposed change in control of
Subscriber that results or would result in a direct
competitor of ToolWatch directly or indirectly owning or
controlling 50% or more of Subscriber shall cause this
Agreement to terminate immediately upon the
consummation of such transaction without notice or other
action on the part of ToolWatch Subscriber agrees that
any request for assignment of its rights and obligations
hereunder shall be made by submitting to ToolWatch a
fully signed copy of Recuest to o Assign Rights to MSA in
the form attached hereto as Exhibit A Subscriber
understands that ToolWatch shall be free to reject any
request for assignment submitted to it hereunder in its
sole discretion
28 Amendments Waivers
This Agreement may not be amended or modified except
by written agreement signed by authorized representatives
of the parties and no course of conduct or dealing
between the parties shall be deemed to modify or amend
the express provisions of this Agreement The failure of
ToolWatch to enforce any right or provision in this
Agreement shall not constitute a waiver of such right or
provision unless acknowledged and agreed to by
ToolWatch in writing
29 General
Official Language The official version of this
Agreement shall be the version rendered in English
irrespective of any translation hereof into any other
language
Governing Law. Jurisdiction and Venue With respect to
U S Customers this Agreement shall be governed by
Colorado law and controlling United States federal law
without regard to the choice or conflicts of law provisions
thereof or of any other jurisdiction and any disputes
actions claims or causes of action arising out of or in
connection with this Agreement or the Service shall be
subject to the exclusive Jurisdiction and venue of the state
and federal courts located in Denver Colorado With
respect to Non U S Customers this Agreement shall be
governed by the laws of the State of Colorado and
controlling United States federal law without regard to
the choice or conflicts of law provisions thereof or of any
other Jurisdiction and any disputes actions claims or
causes of action arising out of or in connection with this
Agreement or the Service shall be subject to the exclusive
Jurisdiction of the courts of Switzerland with the official
language in which any such proceeding shall be
conducted to be English
Master Subscription Agreement — ToolWatch Enterprise v01-15-08C_CityotFortCollms Page 9 of 10
