CARNEGIE AGENCY ONLINE MASTER SUBSCRIPTION AGREEMENT
THIS CARNEGIE AGENCY SERVICE SUBSCRIPTION AGREEMENT (“AGREEMENT”) IS BY AND BETWEEN CARNEGIE AGENCY LLC, WITH BUSINESS OFFICES LOCATED IN MILFORD, NEW JERSEY 08848 (“CARNEGIE AGENCY”), AND YOU (THE “SUBSCRIBER”). THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE DATE OF ELECTRONIC ACCEPTANCE BY WRITTEN APPROVAL INDICATING ACCEPTANCE OR BY EXECUTING AN ORDER FORM (“ORDER FORM”) THAT REFERENCES THIS AGREEMENT (“EFFECTIVE DATE”).
WHEREAS, Carnegie Agency has developed and maintains an integrated suite of Internet-based services allowing subscribers to access and use online products including websites, newsletters, emails, SEO and CRM services.
These Services are provided by Carnegie Agency under the trade names “Carnegie LITE®”, Carnegie Digital PLUS®“, Carnegie SOCIAL®”, and “Carnegie CRM®” and are described in greater detail on Carnegie Agency’s website, (“Site”).
WHEREAS, Subscriber wishes to utilize the Services described on the Site in connection with Subscriber’s organization, and Carnegie Agency has agreed to provide such Services pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, the Parties hereto, for good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, and intending to be legally bound, hereby agree as follows:
1. Subscription Grant. Use of the Services provided by Carnegie Agency hereby grants to Subscriber a non-exclusive, non-transferable, worldwide right during the Term (“Subscription”) to access and use the Services in accordance with this Agreement. All rights not expressly granted to Subscriber under the Subscription are reserved by Carnegie Agency. If there are any conflicts between this Agreement and the details of the license in the Order Form, the details of the license in the Order Form shall prevail.
2. Service Details.
a. Carnegie Agency offers a service that allows clients access to websites, Social Media, Newsletters, and CRM.
b. Support Services. During the term of this Agreement, Carnegie Agency shall provide maintenance and support services, limited content updates and metrics for the Services as set forth in the Order Form and shall receive “Enterprise Support” defined as best reasonable effort striving for email, phone or text response within four (4) hours.
3. Fees and Payment.
a. Subscription Fees. The fees for use of Carnegie Agency’s Services (“Subscription Fees”) are described in detail in the Order Form and are calculated, as specified, based on website size or type of services provided.
b. Payment of Subscription Fees. Payment of Subscription Fees shall be made in advance and in monthly or annual installments, prior to the beginning of each Term. Additional Licenses or Services shall be charged in recurring invoices on the same day each month in which they are ordered. All invoices shall be due upon receipt unless otherwise specified in the Order Form.
c. Refunds. All work is warrantied for a period of thirty (30) days under the category, Break/Fix. Monies used to purchase products and services from third-parties requested by the subscriber are non-refundable. Refunds are available prior to the delivery of a prototype for Carnegie Digital LITE and Carnegie Digital PLUS. The Refund is a prorated amount less the cost of work completed calculated at an hourly rate of $125 per hour. Carnegie SOCIAL and Carnegie CRM subscriptions are not refundable and can be canceled within thirty (30) days notice after the first twelve (12) months. No Refunds are available for partial periods.
d. Increases in Subscription Fees. Subscription Fees contained in the Order Form will be fixed for a period of twelve (12) months following the Effective Date of the start of the account, and thereafter may be increased by Carnegie Agency not more often than once per year, and upon providing Subscriber with thirty (30) days prior written notice of the increase not to exceed five (5) percent of the current fee.
e. Taxes and Duties. Carnegie Agency fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Subscriber will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state), local, or other taxes based solely on Carnegie Agency income.
4. Carnegie Agency References to Subscriber. Upon execution of this Agreement, Carnegie Agency may make references to Subscriber and Subscriber’s URL and may use Subscriber’s designated trademark and logo for publication on Carnegie Agency’s current list of subscribers located on the Carnegie Agency Site.
5. Amendments. The Parties agree that, in order to continually improve its Services, Carnegie Agency may, from time to time, amend its Site and Services in its discretion and will make commercially reasonable efforts to notify Subscribers of said amendments.
6. Subscriber Proprietary Information. Carnegie Agency agrees that it has no rights to the data, documents, information or material that Subscriber submits in the course of using the Services (“Customer Data”).
7. Term, Suspension, and Termination. This Agreement shall commence on the Effective Date and shall automatically renew at the current rate on an annual basis so long as Carnegie Agency is providing Services pursuant to an executed Order Form or acceptance of these terms. The initial term (“Initial Term”) for the provision of Services shall be set forth in the applicable Order Form or twelve (12) months if not stated on the Order Form. The Initial Term shall thereafter automatically continue annually, for successive twelve-month (12) periods (“Subsequent Term”), unless Subscriber provides at least a forty-five (45) days written notice of termination prior to the start of each twelve (12) month period in the Subsequent Term. Exceptions for Termination include bankruptcy and terminating operations.
8. Disclaimer of Warranties. The Site and Services are provided on an “as is” and “as available” basis, and, unless otherwise stated in this Agreement, Carnegie Agency expressly disclaims all warranties, including the warranties of merchantability, and fitness for a particular purpose and non-infringement. Carnegie Agency disclaims all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of or any way related to (a) any errors in or omissions from this Site and Services; (b) the unavailability of this Site, Services, or any portion thereof; (c) Subscriber’s use of this Site or Services.
9. Limitation of Liability.
a. THE LIABILITY OF CARNEGIE AGENCY AND SUBSCRIBER TO EACH OTHER FOR ANY AND ALL CAUSE(S) OF ACTION, REGARDLESS OF THE FORM OF ACTION (INCLUDING CONTRACT, TORT, NEGLIGENCE OR ANY OTHER), ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OR BREACH OF THIS AGREEMENT WILL IN NO EVENT EXCEED THE AMOUNT PAID BY SUBSCRIBER TO DRAWLOOP UNDER THIS AGREEMENT FOR THE APPLICABLE SERVICES IN THE PAST 12-MONTHS PRIOR TO THE EVENT RESULTING IN THE CLAIM.
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES, OR DAMAGES FROM LOST PROFITS, LOST USE, OR ANY OTHER DAMAGES OF ANY KIND WHATSOEVER IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THIS SITE OR SERVICES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Additional Miscellaneous Provisions.
a. Governing Law; Jurisdiction; Venue; Attorney’s Fees. This Agreement shall be construed in accordance with, and governed by, the laws of the State of New Jersey.
b. Amendment. This Agreement may be modified only in writing, signed by a duly authorized representative of each Party.
c. Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating joint venture, partnership, agency, or employment relationship between the Parties, and neither Party shall have any right to bind the other or incur any obligation on the other’s behalf without the other’s prior written consent. Except as expressly provided for herein, this Agreement is not for the benefit of any third party, but nothing in this Agreement shall prevent or interfere with any consumer bringing an action against Subscriber for violation of the law.
d. Entire Agreement; Waiver. This Agreement and the Exhibits hereto constitute the entire agreement between the Parties as to the subject matter hereof and supersede all prior and/ or contemporaneous agreements, representations, and understandings between them, whether orally or in writing, except as may be expressly incorporated by reference into this Agreement. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Parties.
Carnegie Agency Online Service Agreement - Last Updated 1/27/2018