Subscription Agreement

By signing an Order Form or similar-type document with Bound Systems, Inc. ("Bound") that references this Subscription Agreement (the "Agreement"), the Customer named in the Order Form accepts and agrees to be bound by the terms and conditions in this Agreement (the "Agreement"). This Agreement sets forth the terms and conditions governing Bound's provision to Customer of a hosted solution. This Agreement, including any Order Forms, constitutes the entire agreement of the parties and supersedes any prior and contemporaneous oral or written understanding as to the parties' relationship and the subject matter hereof.

    1. "Client Software" means that portion of the Software that is embedded in an HTML page on Customer's Digital Property and enables Customer to engage Customer Data with the Hosted Service.
    2. "Customer Data" means the data supplied by Customer to or stored by Customer in the Hosted Service.
    3. "Digital Property" means any web page, app, or other digital property under Customer's control.
    4. "Documentation" means the online user guide Bound makes accessible for Customer's use with the Hosted Service.
    5. "Hosted Service" means the on-demand, Web-based personalization platform and application provided by Bound, including updates to the Hosted Service, as further described in the applicable Order Form.
    6. "Order Form" refers to the document which details the scope of use, pricing, and initial term applicable to Bound's provision of the Hosted Service to Customer. All Order Forms must be signed by both parties and are subject to this Agreement.
    7. "Privacy Policy" means the privacy policy on a Digital Property.
    8. "Profile" means the collection of settings that together determine the information to be included in, or excluded from, a particular Report. For example, a Profile could be established based on a small number of specified settings as a unique Report. There may be multiple Profiles established under a single Digital Property.
    9. "Professional Services" means the activation, implementation, training, and other consulting and professional services related to the Hosted Service and provided by Bound to Customer as specified in an Order Form.
    10. "Report" means the resulting analysis for a Profile.
    11. "Services" means the Hosted Service and/or Professional Services.
    12. "Software" means the software Bound uses, provides or makes available for use in connection with the Hosted Service. Software includes the Client Software.
    13. "Subscription Fees" mean the fees paid by Customer for the right to access and use the Hosted Service and receive support for the Hosted Service during the applicable Term.
    14. "Users" means Customer's employees, agents, contractors, and consultants who are authorized by Customer to use the Hosted Service.
    1. Availability of the Hosted Service.Bound will make the Hosted Service available to Customer during the Term of each applicable Order Form solely for Customer's internal business purposes, including to remotely access, view, and download Reports. The Hosted Service will be available in accordance with the Support and Service Level Agreement attached as Exhibit A.
    2. License to Software Provided for Use with the Hosted Service.Subject to the terms and conditions set forth in this Agreement, Bound grants Customer a nonexclusive, non-sublicensable license during the Term of each applicable Order Form to embed the Client Software in an HTML page on Customer's Digital Property solely for use in conjunction with the Hosted Service. Customer acknowledges that, from time to time, Bound may issue updates to the Client Software (for example, to address security vulnerabilities, upgrade the protocol, improve usability or performance, and upgrade features). In that event, the version of the Client Software that is running on the HTML page will be automatically upgraded and Customer consents to such automatic upgrading. All updates to the Client Software will be subject to the terms and conditions of this Agreement.
    3. Support for the Hosted Service.Bound will provide access to its regularly-updated online knowledge base (subject to availability) as well as the information needed to access Bound's web-based customer support tool and to submit requests for assistance on-line. Bound makes reasonable assistance available by e-mail and telephone on weekdays (excluding holidays) during regular business hours for up to three designated support contacts, each of whom must be knowledgeable regarding the Hosted Service. Support for the Hosted Service will be provided in accordance with the Support and Service Level Agreement attached as Exhibit A.
    4. Professional Services.Bound will provide Professional Services as specified in the applicable Order Form. Unless otherwise set forth in the applicable Order Form, all Professional Services will be billed monthly on a time and materials basis at Bound's then standard rates, plus travel, lodging, and per diem expenses.
    1. Access to the Hosted Service. Customer is responsible for (i) all activities conducted under its User logins, (ii) complying with all applicable laws and regulations in connection with Customer's use of the Hosted Service, and (iii) obtaining and maintaining any hardware, software and network infrastructure ("Customer Equipment") and any ancillary services needed to connect to, access or otherwise use the Hosted Service, and ensuring that the Customer Equipment and ancillary services comply with the configuration requirements specified in the Documentation. Customer agrees to notify Bound immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Hosted Service.
    2. Use of the Hosted Service. Customer shall not: (i) resell, sublicense, lease, time-share or otherwise make the Hosted Service available to any third party; (ii) send or store infringing or unlawful material; (iii) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Hosted Service or the data contained in it; (iv) modify, copy or create derivative works based on the Hosted Service; (v) reverse engineer the Hosted Service; (vi) access the Hosted Service for the purpose of building a competitive product or service or copying its features or user interface; (vii) use the Hosted Service, or permit its use, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without Bound's prior written consent; or (viii) permit access to the Hosted Service by a direct competitor of Bound.
  4. INTELLECTUAL PROPERTY OWNERSHIP RIGHTS. Bound retains all ownership rights in the Hosted Service and any technology (including software, hardware, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) utilized to provide the Hosted Service, including all intellectual rights in any of the foregoing. Customer retains all ownership rights in the Customer Data, including all intellectual rights in the Customer Data. Customer grants Bound the nonexclusive, paid-up right to use the Customer Data solely to provide the Hosted Service to Customer. Except as expressly set forth in this Agreement, neither party grants any rights to the other including any license, right or interest in any Bound or Customer trademark, copyright, trade name or service mark.
  5. FEES.
    1. Fees. Customer agrees to pay Bound fees as follows:
      1. Subscription Fees for the Hosted Service. Subscription Fees for use of the Hosted Service during the Initial Term are specified in the applicable Order Form. If Customer upgrades or expand its use of the Hosted Service within a Term (for example, to obtain additional features or functionality) or if Customer's use exceeds the Service plan ordered (each of the foregoing is referred to as a "Service Upgrade"), Customer agrees to pay for the Service Upgrade at Bound's then-current pricing. Additional fees due for the Service Upgrade will apply for the entire month in which the Service Upgrade occurred and will be calculated to be coterminous with the applicable Term. Bound may modify the Subscription Fees for any Renewal Term upon 30 days' prior written notice. Any increase in fees for Hosted Services, other than for a Service Upgrade, will take effect at the beginning of the next Renewal Term.
      2. Fees for Professional Services. Customer will pay Bound for Professional Services as specified in the applicable Order Form. If not specified, fees will be payable on a time-and-materials basis.
    2. Additional Payment Obligations. Unless otherwise expressly provided in this Agreement, Customer's payment obligations are non-cancelable and, upon payment, all payments made by Customer are non-refundable. All payments will be made in U.S. dollars. Fees are due within 30 days from receipt of Bound's invoice (or as otherwise set forth in the invoice) unless subject to a reasonable and good faith dispute. Any payment not received from Customer by the due date may result in suspension of Customer's ability to access the Hosted Service until payment is made. Past due amounts will incur interest at a rate equal to the lower of 1.5% per month or the highest rate permitted by law. In addition, Customer will reimburse Bound for all reasonable and actual costs incurred by Bound in collection of delinquent amounts not subject to a reasonable and good faith dispute.
    3. Taxes. Amounts charged by Bound do not include applicable taxes or similar fees now in force or enacted in the future resulting from any transaction under this Agreement. Customer is responsible for all such amounts and will pay them in full (except for taxes based on Bound's net income). If Bound has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority.
    4. Expense Reimbursement. Customer will reimburse Bound for all reasonable, pre-approved and appropriately documented travel and related expenses incurred by Bound in performing Professional Services at Customer's location. Customer will be responsible for its own travel and out-of pocket expenses associated with attending any training services at a Bound facility.
  6. PRIVACY. Customer will not (and will not allow any third party to) use the Hosted Service to track, collect or upload any data that personally identifies an individual (such as a name, email address or billing information), or other data that can be reasonably linked to such information. Customer agrees to post and maintain an appropriate Privacy Policy which, at a minimum (a) describes the browser identification technology used, (b) provides notice of Customer's use of cookies used to collect data (including that data may be disclosed to a third party), the purpose of the collection of data, and retention periods of the data collected), (c) describes the consent mechanism (e.g., opt-in or opt-out) used to comply with applicable laws including any laws consistent with the California Consumer Privacy Act (CCPA) and the General Data Protection Regulation (GDPR 2016/679), and (d) provides any data subject with all necessary information and clear resource options to exercise their rights under CCPA and GDPR. Customer also agrees to abide by that Privacy Policy, including to honor consumer or data subject selection via opt-in and opt-out choices, other consent mechanisms, or any exercise of their rights regarding personal data. Customer agrees not to circumvent any privacy features (e.g., an opt-out) that are part of the Hosted Service. Customer further agrees that they act as the "controller" for the purposes of any personal data that is processed, including all personal data that is collected, stored, altered, transmitted or otherwise accessed. The Hosted Service acts as the "processor" under the direction of the Customer and will assume no responsibility for determining whether any personal data subject to the provisions of the CCPA and the GDPR is processed on the Customer's behalf. If the Hosted Service is made aware of a data subject's request to purge personal data, the Hosted Service will honor that request according to applicable law. If a data subject requests that the Customer purge any personal data the Customer will be responsible for fulfilling that request. Further, the Customer agrees that all the provisions of Appendix 1, Data Protection Addendum to the Subscription Agreement, are incorporated into this Agreement for all purposes.
    1. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it will comply with all other applicable laws in performance of its obligations and use of the Services hereunder.
    2. By Bound.
      1. Hosted Service Warranty.
        1. General. Bound warrants that the Hosted Service will perform in all material respects in accordance with the Documentation. Bound may modify the Documentation in its sole discretion as long as at all times this Agreement is in effect the functionality of the Hosted Service will not be materially decreased during the Term specified in the applicable Order Form. In the event the Hosted Service is nonconforming, Bound will fix, provide a work around, or otherwise repair or replace the nonconforming Hosted Service, or, if Bound is unable to do so, terminate Customer's access to the Hosted Service and return Subscription Fees for the Hosted Service previously paid to Bound for the period beginning with Customer's notice of nonconformity through the remainder of the Initial Term or Renewal Term, as applicable.
        2. Noninfringement. Bound warrants that, to its knowledge, use of the Hosted Service as permitted under this Agreement does not infringe the intellectual property rights of any third party. In the event of any breach of this warranty, Bound will indemnify Customer as specified in Section 9 ("Indemnification").
      2. Warranty for Professional Services. Bound warrants that (A) Bound will provide the Professional Services in a professional and workmanlike manner consistent with good industry standards and practices, and (B) for a period of three months after completion, the Professional Services will conform to the applicable Order Form. In the event of any breach of the foregoing warranty, Bound will re-perform the Professional Services or, if Bound is unable to do so, return the fees paid to Bound for the nonconforming Professional Services.
    3. Disclaimer. The provisions of this Section 7 constitute Customer's sole and exclusive remedy, and Bound's sole and exclusive liability, for breach of the warranties set forth in this Agreement. Bound and its suppliers and licensors (collectively, "Suppliers") make no other representation, warranties or conditions of any kind, whether implied, statutory or otherwise, and expressly disclaim any warranties of merchantability or fitness for a particular purpose. Bound does not warrant that the operation of the Hosted Service will be uninterrupted or error-free.
    1. Confidential Information Defined. "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information specifically includes (i) in the case of Customer, the Customer Data, and (ii) in the case of Bound, the terms and conditions of this Order Form (including pricing). Confidential Information will not include any information that, in each case without breach of any obligation owed to Disclosing Party: (i) is or becomes generally known to the public; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party; (iii) was independently developed by Receiving Party without breach of this Agreement; or (iv) is received from a third party.
    2. Obligations regarding Confidential Information.Receiving Party will not use or disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party's prior written consent. Receiving Party will protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Bound will maintain the confidentiality of Customer Data in accordance with applicable laws and, except as required by applicable law, will not disclose Customer Data to any third party for any purpose other than to provide the Hosted Service and Professional Services to Customer, and as otherwise expressly permitted in this Agreement. Receiving Party will promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information.
    3. Compelled Disclosures.If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, Receiving Party will provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if Disclosing Party wishes to contest the disclosure. The Receiving Party will (i) take reasonable steps to limit any such provision of Confidential Information to the specific Information required by such court or agency, and (ii) continue to otherwise protect all Information disclosed in response to such order, subpoena, regulation or process of law. Except for such required disclosure, the Confidential Information will remain subject to the terms of this Agreement and may only be disclosed as set forth in this Section 8.
    4. Injunctive Relief.If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party will have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
    5. Return of Confidential Information.Upon any termination of this Agreement, Receiving Party will continue to maintain the confidentiality of Disclosing Party's Confidential Information and, upon request, return to Disclosing Party or destroy (at Disclosing Party's election) all materials containing such Confidential Information.
    1. Bound's Indemnification.
      1. Indemnity. At its sole expense, Bound will defend Customer from and against all claims, suits or actions (each, a "Claim") made or brought against Customer by a third party alleging that the provision of the Hosted Service infringes the intellectual property rights of that third party, and will pay the amount of any final judgment awarded or final settlement made with respect to such Claim. In addition to Bound's obligation of indemnification, if the Hosted Service becomes or, in Bound's opinion, is likely to become the subject of a claim of infringement, Bound may, at its sole option and expense, either procure for Customer the right to continue using the Hosted Service, as applicable, under the terms of this Agreement or replace or modify the Hosted Service to be non-infringing without material decrease in functionality. If neither of the foregoing options is reasonably practicable, in Bound's judgment, Bound may terminate Customer's access to the infringing Hosted Service and refund Customer all prepaid Subscription Fees for the remainder of the applicable Term on a pro rata basis.
      2. Exclusions from Indemnity. Bound will have no liability for any Claim to the extent the Claim is based upon (A) the use of the Hosted Service in combination with any other product, service or device not furnished by Bound, if such Claim would have been avoided by the use of the Hosted Service, without such product, service or device; or (B) Customer's use of the Hosted Service other than in accordance with this Agreement.
    2. Customer's Indemnification.At its sole expense, Customer will defend Bound from and against all Claims made or brought against Bound by a third party arising out of or relating to (i) Customer's violation of applicable laws in connection with its use of the Hosted Service, (ii) any representations and warranties made by Customer concerning any aspect of the Hosted Service or Reports to any third party; and (iii) Customer's breach of its obligations under Section 6 ("Privacy"); and will pay the amount of any final judgment awarded or final settlement made with respect to such Claim.
    3. Conditions to Indemnity.To qualify for indemnification under this Agreement, the party requesting the indemnity ("Indemnitee") must (i) promptly give written notice of the Claim to the party providing the indemnity ("Indemnitor"); (ii) give the Indemnitor sole control of the defense, negotiation, compromise and settlement of the Claim; provided however, that any such settlement does not impose any obligation of payment or admission of guilt, or any other material obligation (except customary obligations of confidentiality) on the Indemnitee without the Indemnitee's prior written consent; and (iii) provide to the Indemnitor, at the Indemnitor's cost, all reasonable assistance. The Indemnitee may elect to participate in any such action with an attorney of its own choice and at its own expense.
    1. Limitation and Exclusions of Liability. Except as provided in Section 10.b below, (i) in no event will either party (including its affiliates and suppliers) have any liability to the other for any lost profits or for any indirect, special, incidental, punitive, or consequential damages however caused and, whether in contract, tort or under any other theory of liability, whether or not the party has been advised of the possibility of such damages, and (ii) in no event will the aggregate liability of either party (including its affiliates and suppliers) for direct damages for all claims under this Agreement exceed the fees paid by Customer to Bound during the twelve month period directly prior to the claim (the "Damages Liability Cap Amount"). This Damages Liability Cap Amount is cumulative, with all expenditures and payments made or other liability under this Agreement (excluding the items referenced in Section 10.b) being aggregated to determine satisfaction of this limit. The existence of more than one such claim will in no respect enlarge this limit.
    2. Exceptions to the Limitation and Exclusions of Liability. Notwithstanding the foregoing, no limitation on or exclusion of the liability of either party applies to:
      1. damages arising from a breach of a party's obligations under Section 8, "Confidentiality,"
      2. either party's obligation of indemnification under Section 9, "Indemnification," or
      3. customer's obligation to pay amounts due under this Agreement.
    1. Term. This Agreement commences on the Subscription Start Date of each Order Form and remains in effect until all Order Forms entered into by the parties have expired or been terminated. The initial term applicable to each Order Form means the period that commences on the Subscription Start Date specified in the relevant Order Form and continues until the Subscription End Date specified in the Order Form (each, an "Initial Term"). Upon expiration of the Initial Term of an Order Form, the Order Form will automatically extend for successive twelve month periods (each of which is referred to as an "Renewal Term" and, together with the Initial Term, is referred to as the "Term") unless one party elects not to renew the Order Form by giving the other party at least 30 days' written notice of non-renewal prior to the end of the Initial Term or any Renewal Term.
    2. Termination. This Agreement will terminate automatically if there are no Order Forms in effect. A party may terminate this Agreement for cause: (i) upon 30 days' written notice to the other party of a material breach of this Agreement (or any Order Form) if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (iii) as otherwise expressly provided herein. Upon any termination for cause by Customer, Bound will refund Customer any prepaid Subscription Fees for the remainder of the applicable Term on a pro rata basis.
    3. Effect of Termination. Upon the effective date of termination of this Agreement: Customer's access to the Hosted Service (and licenses to use the Reports) will cease and Bound will delete all backed-up Customer Data from Bound ‘s systems within 30 days of termination of this Agreement.
    4. Survival. The terms of any sections that by their nature are intended to extend beyond termination including, but not limited to, Sections 4 ("Intellectual Property Ownership Rights"), 7.c ("Disclaimer), 8 ("Confidentiality"), 9 ("Indemnification"), 10 ("Limitation of Liability"), and 12 ("General"), will survive termination of this Agreement for any reason.
  12. GENERAL.
    1. Publicity. Customer agrees that, during the Term, Bound may list Customer as a client in Bound's marketing collateral, including on its websites. Customer also agrees to issue a joint press release with Bound (with content of the press release agreed to by both parties) following the Effective Date describing Customer's selection of Bound to fight fraud, and to issue another press release once the Hosted Service is live. In addition, from time to time, at Bound's request, Customer will make reasonable efforts to act as a customer, press, and analyst reference, and to participate in additional marketing activities such as a customer case study and digital press release, all of which activities will be mutually agreed to by both parties.
    2. Independent Contractors. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.
    3. Feedback. Customer may from time to time provide suggestions, comments or other feedback ("Feedback") to Bound with respect to the Hosted Service. Bound is free to use the Feedback for any purpose, without payment or obligation.
    4. Notices. All notices required to be given under this Agreement will be given in writing, and sent to the recipient party's address stated in this Agreement, unless otherwise changed in writing. All notices will be given by certified or registered mail, overnight carrier, facsimile, or e-mail of a PDF document (with confirmation of transmission). Such notices will be deemed given on the date of receipt of delivery of said notice.
    5. Amendment; Order of Precedence. No amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by Customer and Bound. To the extent of any conflict among this Agreement and any Order Form, the terms of the Order Form will prevail. Additional or different terms in any purchase order or other communication from Customer are void.
    6. No Waiver. No failure or delay in exercising any right hereunder will constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in effect.
    7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform its obligations under this Agreement (excluding payment obligations) if the delay or failure arises from any cause or causes beyond that party's reasonable control.
    8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its (i) affiliate or (ii) successor in interest in connection with a merger, reorganization, or sale of all or substantially all of its assets or equity not involving a direct competitor of the other party. Any attempted assignment in breach of this Section will be void. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. As used in this Agreement, "affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement where "control" means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity.
    9. Export. Customer agrees to comply fully with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the Hosted Service.
    10. Governing Law. This Agreement will be governed exclusively by the laws of the State of Texas, without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply.