TERMS AND CONDITIONS APPLICABLE TO USE OF THE SERVICES
MASTER SUBSCRIPTION AGREEMENT
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) IS BY AND BETWEEN Northern Lights Group, Inc DBA ThirdPartyTrust, A C CORPORATION (“SERVICE PROVIDER”) AND ______________, AN __________ (“CUSTOMER”) AND GOVERNS THE ACQUISITION AND USE OF THE SERVICES DESCRIBED HEREIN. SERVICE PROVIDER AND CUSTOMER MAY EACH BE REFERRED TO HEREIN AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”.
BY SIGNATURE BELOW YOU AGREE TO THE TERMS OF THIS AGREEMENT. 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 AND ITS AFFILIATES 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 SERVICES.
This Agreement was last updated on July 20, 2020. It is effective between You and Us as of the date of signature below.
“Agreement” means the Order Form along with this Master Subscription Agreement (“MSA”) that sets out the provision and delivery of software services to our customers through the Internet.
“You,” “Your”, “Customer” or “Subscriber” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Affiliate” means any entity which 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.
“Order Form” means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us from time to time, including 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 shall be deemed incorporated herein by reference.
“Services” means the products and services that are ordered by You under an Order Form and made available by Us online via web pages designated by Us.
“Users” or “Authorized User” means individuals who are authorized by You to use the Services, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us”, “Service Provider” or “Our” means Northern Lights Group, Inc.
“Your Data” means all electronic data or information submitted by You to the Purchased Services.
“Service Levels” or “Service Level Terms” means the levels of performance to which the Services are to be provided to the Customer by Provider as set out in Attachment A.
TERMS AND CONDITIONS APPLICABLE TO USE OF THE SERVICES
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Service Provider will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms attached hereto as Exhibit A.
1.2 Subject to the terms hereof, Service Provider will provide Customer with technical support services in accordance with the terms attached hereto as Exhibit B.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not knowingly, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Service Provider or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Service Provider includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Service Provider also includes, but is not limited to: (i) all intellectual property such as all software code (both source and executable) in the Services; (ii) all technology relating to the platform created by the Service Provider; and (iii) all patents, copyrights, trademarks and trade secrets. Proprietary Information of Customer includes non-public data provided by Customer to Service Provider to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, (ii) trade secrets, (iii) business models (iv) and not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document; (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Proprietary Information of the Disclosing Party; (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Service Provider shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Service Provider shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Service Provider will be permitted to: (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes solely in connection with the Services and other Service Provider offerings and for no other purposes whatsoever; and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. FEES AND PAYMENT
4.1 Customer will pay Service Provider the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Service Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Service Provider has billed Customer incorrectly, Customer must contact Service Provider no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Service Provider’s customer support department.
4.2 Service Provider may choose to bill through an invoice, in which case, full payment for invoices properly issued must be received by Service Provider in accordance with the agreed-upon payment terms. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Service Provider’s net income. In the event of default or non-payment resulting in legal proceedings, Customer shall be responsible for any reasonable attorney fees and costs incurred by Service Provider in enforcing the terms of this agreement.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least sixty (60) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon sixty (60) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure within a reasonable time following written notice of the alleged breach. Absent a payment dispute, Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Service Provider will make all Customer Data available to Customer for electronic retrieval for a period of sixty (60) days, but thereafter Service Provider may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
6.1 Service Provider shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Service Provider or by third-party providers, or because of other causes beyond Service Provider’s reasonable control, but Service Provider shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
6.2 Service Provider represents, warrants, and covenants that, to its knowledge, the Services do not include (a) any virus or other code typically described as a virus or by similar terms (such as a Trojan horse, worm or backdoor) that may disrupt, damage, or interfere with Customer’s use of the Software Program or its computer and/or telecommunications facilities; or (b) any feature or function that may enable Service Provider or any third party to (i) discontinue Customer’s effective use of any such Services; (ii) erase, destroy, corrupt, restrict the use of or modify any data of Customer without the consent of Customer; (iii) bypass any internal or external software security measure in order to obtain access to the systems of Customer or Customer’s data without written consent of Customer. Service Provider further represents, warrants and covenants that the Services will conform in all material respects to the documentation supplied by Service Provider.
HOWEVER, SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Service Provider shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Service Provider is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Service Provider will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Service Provider, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Service Provider, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Service Provider to be infringing, Service Provider may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON OR BREACH OF CONFIDENTIALITY OBLIGATIONS, CUSTOMER, SERVICE PROVIDER AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO SERVICE PROVIDER FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Service Provider’s prior written consent which will not be unreasonably withheld, conditioned or delayed. Service Provider may transfer and assign any of its rights and obligations under this Agreement upon written notice to Customer. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and Customer does not have any authority of any kind to bind Service Provider in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Illinois.
Name: Anders Norremo Date
Title: CEO / President
Name: [ ] Date
Title: [ ]
SERVICE LEVEL TERMS (EXHIBIT A)
The Services shall be available at least 99.9% of the time, measured monthly in good faith in an accurate manner by Service Provider, excluding scheduled maintenance of which Service Provider provides notice to Customer in accordance with Section 9 of Exhibit B. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance; provided that Service Provider undertakes to complete such maintenance as soon as reasonably practicable. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Service Provider’s reasonable control will also be excluded from any such calculation. For each period of downtime lasting longer than one hour, Service Provider will credit Customer 5% of the equivalent monthly Fees for each period of 60 or more consecutive minutes of downtime. Downtime shall begin to accrue as soon as Customer (with notice to Service Provider) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Service Provider in writing within 24 hours from the time of that Customer becomes aware of such downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash. Service Provider will only apply a credit to the month in which the incident occurred.
SUPPORT TERMS (EXHIBIT B)
Scope. In connection with the Services, Service Provider will provide to Customer support consisting of: (i) reasonable telephone support; (ii) correction of errors to keep the Services in conformance with the applicable user documentation; (iii) any enhancements provided by Service Provider to its general customer base using its Services; and (iv) any maintenance and remediation provided pursuant to Exhibit A and this Exhibit B (collectively, “Support Services”). [Support Services will not include: (i) deployment services; (ii) consultation, error correction, or research with respect to Customer-created information; or (iii) any other separately priced services Service Provider does not generally provide to its general customer base as part of its Support Services.]
2. CUSTOMER SUPPORT
Customer will have access to Service Provider’s technical support personnel (“Technical Support”) during normal business hours. Public holidays are considered to be non-business days. Public holidays and normal business hours are defined below. Communications with Technical Support may be via telephone or e-mail. Service Provider will provide a single point of contact that routes requests/problems to the appropriate Technical Support.
In addition to the support obligations listed above, Service Provider shall provide telephone support twenty four (24) hours a day, seven (7) days a week for Severity 1 level issues as defined in Section 4 below.
Service Provider Support Center
Location: Chicago, Illinois USA
Hours of operation: M-F 7:00AM-5:00PM CST
Phone: (773) 680-4808
Public Holidays Recognized: New Year’s Day, Martin Luther King’s Birthday,President’s Day, Good Friday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day
3. SEVERITY LEVELS.
Technical Support shall prioritize problems/requests according to the severity levels set forth below. Service Provider will respond according to the Response Specifications set forth in Section 5 below with respect to the severity level assigned to the problem:
Severity 1: Critical
The Service is not working at all, a significant function of the Services is not properly working, or a significant number of users are unable to access or use business critical functionality and a work-around is not available. There is or, if the problem is not promptly remedied, is likely to be a significant impact to the core business.
Severity 2: Serious
Functionality of the Service is impaired or some users are unable to access or use business critical functionality however a work-around is available. There is some impact to the core business.
Severity 3: Minor
The Services do not incur an error and allow Customer to function normal business operations; however, Customer inquiries about existing documentation, training, or standard use of the Services.
4. RESPONSE TIMES.*
Severity 1: Critical
Service Provider will respond to and will commence efforts to fix problems immediately. Service Provider will commit resources and use its best efforts to provide an acceptable work-around within forty-eight (48) hours, and will use its best effort to provide a permanent fix for the problem no later than five (5) business days after the report of such problem.
Severity 2: Serious
Service Provider will respond to and will commence efforts to fix problems no later than four (4) business hours after the report of such problem. Service Provider will use reasonable efforts to fix problems and provide an acceptable work-around within five (5) business days. Service Provider will use its best effort to provide a permanent fix of the problem no later than thirty (30) days after the report of such problem.
Severity 3: Minor
Service Provider will acknowledge any such inquiry within eight (8) business hours and will work within normal business hours to address and resolve Customer’s inquiry within ninety (90) days.
* Response times are calculated once a problem has been reported to Service Provider Technical Support by the Customer.
5. RESPONSE SPECIFICATIONS.
The severity level of the problems reported by Customer shall be determined by Service Provider, in its reasonable discretion. Service Provider will resolve each reported error or issue with the Services by providing: (i) an object code patch to the Services or other permanent fix as necessary; or (ii) a mutually acceptable reasonable workaround for the error or issue; or, if either (i) or (ii) are not reasonably practicable, (iii) a specific action plan regarding how Service Provider intends to address the reported error or issue and an estimate on how long it may take to correct or workaround the error or issue. Customer agrees to use commercially reasonable efforts to assist and provide information to Service Provider as required to resolve errors or issues with the Services reported by Customer. In the event Service Provider fails to meet its obligations under this Section, Service Provider will provide a root cause analysis including definition, corrections and process improvement plan. If a permanent repair cannot be made, a temporary resolution (bypass and recovery) will be implemented to the extent reasonably possible.
6. SERVICE PROVIDER ISSUES.
Support Services covers any issue or problem that is the result of a verifiable, replicable error (and Service Provider will use all reasonable means to verify and replicate) in the Services (“Verifiable Service Provider Issue”). An error will be a Verifiable Service Provider Issue only if it constitutes a material failure by the Services to function in accordance with the applicable documentation or specifications. If Technical Support reasonably determines that Customer’s problem is not caused by Service Provider or its systems, equipment, or software, or is otherwise outside Service Provider’s reasonable control, Service Provider is not obligated to provide support under this Agreement. Nevertheless, Service Provider will, if possible, offer suggestions as to how Customer can remedy the problem.
7. ADDITIONAL SUPPORT.
Technical Support may also determine that Customer’s request is a request for additional support (“Additional Support”). Additional Support is any assistance not covered above. Examples of Additional Support include substantive questions regarding data or results, requests for customization, specialized training regarding use of the Services, custom documentation, and deployment. If Service Provider believes that it can appropriately and effectively provide the requested Additional Support, if requested by Customer, Service Provider will do so at its then-current rates upon its standard terms for such services, and pursuant to such terms as the Parties shall mutually agree in writing.
8. CUSTOMER’S RESPONSIBILITIES.
Customer shall be responsible for handling all cases related to supporting the Customer’s own User’s understanding of the application functionality and information accessed through Service Provider Services.
Customer shall be responsible for maintaining Customer’s information in the Service Provider Service.
Support provided pursuant to this Support Agreement does not cover compatibility problems between the Services and any other application software not maintained or supported by Service Provider.
9. SERVICE PROVIDER MAINTENANCE AND OUTAGE NOTIFICATION.
Service Provider typically schedules outages during non-business hours on Friday evenings and weekends. Service Provider will notify Customers of any planned outages at least twenty-four (24) hours before any scheduled downtime. Service Provider will notify Customer of any emergency outages as soon as information about such unplanned event becomes available. Finally, Service Provider will notify Customers about major application upgrades and provide a list of applicable changes at least ten (10) days prior to installing any such upgrade or change.
10. SUBMITTING A REQUEST/GETTING AN ANSWER.
At the time of Customers initial call or e-mail, please be prepared to provide to Service Provider:
- Customer name, company name and Services Customer is using
- Telephone number and alternate method of contact (i.e. a pager number or email address)
- A concise description of Customer problem or question
- The circumstances under which the problem does or does not occur
- Specific error messages, error numbers and program numbers
For new cases a Service Provider Technical Support specialist will use this process to assist Customer with a new case (problem):
- Document the supplied information
- Document Customer questions or issues (symptom and function in which it occurs) and provide Customer with a case number to track resolution
- Answer Customer questions or have Customer run tests to further identify and isolate the problem
- Research the problem and provide resolution within the response times set forth above in Section 4