Last Updated: [5/21/21]
This Service Subscription Agreement (the “Agreement”) is entered into as of Month Day, Year, between Genba, Inc. (“Company”) and Company Name (“Subscriber”). The parties agree as follows:
1.1 “Documentation” means Company-provided user documentation, in all forms, relating to the Services (e.g., on-boarding documents, user manuals, on-line help files).
1.2 “Services” means the software services identified in Exhibit A.
1.3 “Service Providers” means all employees, contractors, consultants, officers, contingent workers, and other service providers of Subscriber.
1.4 “User” means an individual or entity who is authorized by Subscriber to use the Service, and who has been supplied a user account and password for the Service by Subscriber or Company.
1.5 “Visitors” means each authorized visitor to Subscriber’s facilities.
2.1 Use of the Services. Subject to the terms and conditions of this Agreement, Company grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 9.2) right during the term of this Agreement to use the Services solely in connection with Subscriber’s internal business operations.
2.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, Company grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 9.2) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Services in accordance with this Agreement.
2.3 Technical Support Services. For so long as Subscriber is current with its payment of the fees specified in Exhibit A, Company will use reasonable efforts to provide Subscriber with technical support services relating to the Services by email from 9am-5pm Pacific, Monday through Friday, excluding holidays.
2.4 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: rent, lease, or otherwise permit third parties to use the Services or Documentation; use the Services to provide services to third parties (e.g., as a service bureau); use the Services for any benchmarking activity or in connection with the development of any competitive product; nor circumvent or disable any security or other technological features or measures of the Services.
2.5 User Accounts. User accounts are for use by designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.
2.6 Compliance with Laws. Subscriber will use the Services and Documentation in compliance with all applicable laws and regulations. Without limiting the generality of the foregoing, Subscriber specifically agrees that Subscriber’s collection, entry, retention, transmission, storage, and use of Service Providers’ and Visitors’ data in connection with the Services (or any of the foregoing performed by anyone acting on Subscriber’s behalf) will comply with and be carried out in a manner consistent with all applicable local, state, and federal laws, including, without limitation, Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, all laws regarding Service Provider and Visitor privacy and the confidentiality of Service Provider and Visitor health/medical information, and all other laws and regulations (including, without limitation, common law, decisional law, statutes, constitutions, orders, proclamations, and rules). Subscriber also agrees that it will obtain the prior signed, written consent of all applicable Service Providers and Visitors for the collection, entry, retention, transmission, storage, and use of data relating to such Service Providers and Visitors in connection with Subscriber’s use of the Services. Subscriber further agrees that it or anyone acting on its behalf will not obtain such consent from any Service Providers or Visitors by any form of misrepresentation, fraud, duress, coercion, or any other inappropriate means. For clarity, Subscriber agrees that any breach by Subscriber of any of Subscriber’s covenants in this Section 2.5 will be a material breach of this Agreement.
2.7 Protection against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Services and Documentation and immediately notify Company in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Company to prevent or terminate unauthorized use of the Services or Documentation.
2.8 Reservation of Rights. Company grants to Subscriber a limited right to use the Services and Documentation under this Agreement. Subscriber will not have any rights to the Services or Documentation except as expressly granted in this Agreement. Company reserves to itself all rights to the Services and Documentation not expressly granted to Subscriber in accordance with this Agreement.
2.9 Feedback. If Subscriber provides any feedback to Company concerning the functionality and performance of the Services (including identifying potential errors and improvements), Subscriber hereby assigns to Company all right, title, and interest in and to the feedback, and Company is free to use the feedback without payment or restriction.
2.10 Publicity. During the Term, Company may use your corporate name and logo on the Company website and in presentations and other marketing materials created by Company for the purpose of identifying you as a customer of Company and the Service. You hereby grant Company and its Affiliates a license to use your corporate name and logo for the purposes described in this Section. Neither party may issue press releases relating to these Terms without the other party’s prior written consent.
2.11 Personal Data Processing. Company will process Subscriber Personal Information as specified in Exhibit B.
3.1 Fees and Payment Terms. Subscriber will pay Company the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified in Exhibit A. Unless otherwise specified in Exhibit A, Subscriber will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Company to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars. Company may make changes to the fee structure or amounts at any time upon 15 days’ notice to Subscriber.
3.2 Taxes. Other than net income taxes imposed on Company, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Company after all such taxes are paid are equal to the amounts that Company would have been entitled to in accordance with this Agreement as if the taxes did not exist.
4.1 Term. The term of this Agreement will be as set forth in Exhibit A.
4.2 Trial. Your Subscription may start with a free trial (the “Free Trial”). The specific terms of your Free Trial will be provided in Exhibit A. Hardware such as mobile devices may be provided with your Free Trial, as set forth in Exhibit A. In the event Subscriber terminates this Agreement at the end of the Free Trial and does not return the hardware to Company within 30 days, Subscriber will be liable for the cost of the hardware. Company reserves the right, in its discretion, to determine your Free Trial eligibility and to modify or cancel a Free Trial or a Free Trial offer at any time. WE WILL NOT AUTOMATICALLY CONVERT YOUR FREE TRIAL INTO A PAID SUBSCRIPTION WITHOUT YOUR CONSENT, AND COMPANY MAKES NO GUARANTEE AND UNDERTAKES NO OBLIGATION TO ALERT YOU OF THE EXPIRATION OF YOUR FREE TRIAL. IF YOU WISH TO CONTINUE YOUR ACCESS TO THE LICENSED SERVICES AFTER THE EXPIRATION OF THE FREE TRIAL WITHOUT INTERRUPTION, YOU MUST PURCHASE A SUBSCRIPTION PRIOR TO THE EXPIRATION OF YOUR FREE TRIAL. IF YOUR FREE TRIAL EXPIRES PRIOR TO THE START OF YOUR SUBSCRIPTION, COMPANY IS NOT RESPONSIBLE OR LIABLE FOR ANY ASSOCIATED LOSS, DAMAGE, INJURY OR HARM ARISING FROM THE EXPIRATION OF THE FREE TRIAL OR OTHERWISE IN CONNECTION WITH ANY TERMINATION OF YOUR LICENSED SERVICES, EXCEPT TO THE EXTENT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
4.3 Termination for Material Breach. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 15 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 4.2 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 15-day cure period. If Subscriber fails to timely pay any fees, Company may, without limitation to any of its other rights or remedies, suspend performance of the Services until it receives all amounts due.
4.4 Termination for Convenience. Company may terminate this Agreement at any time for any reason or no reason at all.
4.5 Post-Termination Obligations. If this Agreement is terminated for any reason, Subscriber will pay to Company any fees or other amounts that have accrued prior to the effective date of the termination, any and all liabilities accrued prior to the effective date of the termination will survive, and Subscriber will provide Company with a written certification signed by an authorized Subscriber representative certifying that all use of the Services and Documentation by Subscriber has been discontinued.
4.6 Modification of the Service. Company reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Company will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
5.1 Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “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, including without limitation, business and marketing plans, financial information, technology and technical information, designs, and business processes. Confidential Information will not include any information that: (i) is or becomes generally known to the public without any prior confidentiality obligation; (ii) was in the rightful possession or known by the Receiving Party prior to receipt from the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
5.2 Protection. Each party will not disclose the other party’s Confidential Information, or use the other party’s Confidential information for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission, and will protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
5.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it will provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
5.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality and non-use protections in this Agreement, the 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 specifically acknowledged by the parties that any other available remedies are inadequate.
6.1 Mutual Warranties. Each party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
6.2 Subscriber Warranty. Subscriber represents and warrants to Company that it is not a Covered Entity within the meaning given by the Health Insurance Portability and Accountability Act (“HIPAA”) and that, if during the term of this agreement it were ever to become a Covered Entity, it will give Company at least 60 days’ notice prior to the Covered Entity designation taking effect. Subscriber further acknowledges and agrees that no protected health information (PHI), as that term is defined by HIPAA, is required to perform the Services, and Subscriber represents and warrants that Subscriber will not transfer, or have transferred on its behalf, any PHI to Company for any purpose during the term of this Agreement unless otherwise agreed to by the parties in writing. Subscriber further represents and warrants that any phone numbers provided by Subscriber to Company in order to enable Company to send automated text messages as part of the Services, shall only be provided to Company after Subscriber has obtained and documented all legally required consent to permit Company to send such automated text messages for each such phone number, including but not limited to as may be required under the Telephone Consumer Protection Act (TCPA) and CAN-SPAM Act.
6.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 5, COMPANY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. COMPANY DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. COMPANY DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE. COMPANY EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE SERVICES.
7.1 Defense. Subscriber will defend Company from any actual or threatened third party claim, proceeding, or suit (“Claim”) arising out of or based upon Subscriber’s use of the Services or Subscriber’s breach of any of the provisions of this Agreement. Company will give Subscriber prompt written notice of the Claim; grant Subscriber full and complete control over the defense and settlement of the Claim; provide assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and comply with any settlement or court order made in connection with the Claim. Company will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.
7.2 Indemnification. Subscriber will indemnify Company from and pay all damages, costs, and attorneys’ fees finally awarded against Company in any Claim under Section 6.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Company in connection with the defense of a Claim under Section 6.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and, all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section 6.1.
8.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF COMPANY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
8.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED $10,000.
8.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY COMPANY TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
9.1 Relationship. Company will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.
9.2 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
9.3 Subcontractors. Company may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Company remains responsible for all of its obligations under this Agreement.
9.4 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 8.4. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
9.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
9.6 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in King County, Washington in connection with any action arising out of or in connection with this Agreement.
9.7 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
9.8 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Services will immediately terminate.
9.9 Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
9.10 Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Services that Company may provide. No employee, agent, or other representative of Company has any authority to bind Company with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Company will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Company specifically agrees to such provision in writing and signed by an authorized agent of Company.
1.1 Commercial software license for Genba workflow intelligence platform
1.2 Number and type of seats dependent on company/location. Each Genba user requires a separate seat.
1.3 Hardware dependent on company/location
2.1 Upon completion of the Free Trial, the following subscription rates will apply
2.1.1. $50/user/month (if billed annually)
2.1.2. $60/user/month (if billed monthly)
3.1 Free Trial period will commence the day that Genba is launched with your team.
3.2 Free Trial period will last 30 days.
3.3 At the end of the Free Trial period, your use of the Service will convert to a paid subscription according to this Agreement.
In furtherance of obligations under the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 to 1798.199) and its implementing regulations, as amended or superseded from time to time (“CCPA”), the parties hereby adopt this California Data Processing Addendum (“Addendum”) for so long as Company maintains Personal Information on behalf of Subscriber.
1. Definitions. For the purposes of this Addendum–
1.1 The capitalized terms used in this Addendum and not otherwise defined in this Addendum shall have the definitions set forth in the CCPA.
2. Roles and Scope
2.1 This Addendum applies only to the Collection, retention, use, disclosure, and Sale of Personal Information provided by Subscriber to, or which is Collected on behalf of Subscriber by, Company to provide Services to Subscriber pursuant to the Agreement or to perform a Business Purpose (“Subscriber Personal Information”).
2.2 The parties acknowledge and agree that Subscriber is a Business and appoints Company as a Service Provider to process Subscriber Personal Information on behalf of Subscriber.
3.1 Subscriber represents and warrants that it has provided notice that Subscriber Personal Information is being used or shared consistent with Cal. Civ. Code 1798.140(t)(2)(C)(i).
4. Restrictions on Processing
4.1 Except as otherwise permitted by the CCPA, Company is prohibited from (i) retaining, using, or disclosing Subscriber Personal Information for any purpose other than for the specific purpose of performing the Services specified in the Agreement for Subscriber, as set out in this Addendum and (ii) further Collecting, Selling, or using Subscriber Personal Information except as necessary to perform the Services.
5. Consumer Rights
5.1 Company shall provide commercially reasonable assistance to Subscriber for the fulfillment of Subscriber’s obligations to respond to CCPA-related Consumer rights requests regarding Subscriber Personal Information.
6.1 Company hereby represents and warrants that it shall implement and maintain no less than reasonable security procedures and practices, appropriate to the nature of the information, to protect Subscriber Personal Information from unauthorized access, destruction, use, modification, or disclosure.
7. CCPA Exemption
7.1 Notwithstanding any provision to the contrary of the Agreement or this Addendum, the terms of this Addendum shall not apply to Company’s processing of Subscriber Personal Information that is exempt from the CCPA, including under Cal. Civ. Code 1798.145(a).