This MASTER SUBSCRIPTION AGREEMENT (“MSA”) entered into as of the Effective Date on the Order Form (defined in section 1.5 below), by and between Hindsight Technologies LLC (“Company”) and the individual or entity entering into an Agreement either beta or otherwise and referencing this MSA, registering online for a paid subscription, or registering for a free trial (“Customer”) if applicable.
By clicking “I Accept,” submitting, executing an Order, or accessing or using the Services pursuant to a free trial,
Customer acknowledges and agrees that Customer has read and agrees to be bound by the terms and conditions of this Agreement (as defined below). Capitalized terms not otherwise defined have the meanings ascribed to them in the Definitions section of this MSA or the General Terms.
means, collectively, this MSA, the General Terms and any exhibits attached hereto, as well as any Order and related appendices executed by the parties.
means the online help Company provides for use with an applicable Service.
1.3. “Effective Date”
means (i) in the case of a free trial, the date on which Customer clicks “I Accept” or otherwise first accesses or uses a Service; (ii) in the case of Customer’s initial purchase of a subscription to a Service via an Order Form either delivered manually, by email or submitted electronically, the earlier of the date on which Customer clicks “I Accept” or executes the Customer Contract or (iii) in the case of Customer’s initial purchase of a subscription to a Service other than through an electronic submission (i.e., in writing), the effective date set forth date on the Order Form or, in the absence of such date, the date on which the unaltered Order Form is signed by Customer (or, if altered, counter-signed by Company).
1.4. “General Terms”
will have the meaning set forth in Section 2.1.
1.5. “Order Form”
means a document that details the Service(s) to be provided by Company, the associated fees, and other related details, including, if applicable, an online form accompanying a credit card-based transaction for a Service.
This may be in the form of a proposal, Order Form, either physical, digital format such as pdf or email, or online in electronic format. If multiple Order Forms will apply to this Agreement, each will have its own unique identifier.
Each Order Form is intended to define a separate contract particular to that order, incorporating by reference this MSA, the General Terms and any exhibits hereto or thereto. An Order Form may also contain other terms or conditions, mutually agreed upon in writing by Company and Customer, which apply specifically to that particular order/contract.
Customer agrees that each Order Form will be signed by a representative having the authority to bind Customer,
and that Company may rely on this clause in order to presume that such representative has such authority.
1.6. “Professional Services”
means the implementation, configuration, and/or training, services to be provided by Company to Customer pursuant to an Order Form.
means one or more of the SaaS-based services provided by Company pursuant to an Order Form.
means any Twenty20 product, application, or tool that is provided and accessed as a part of this subscription service.
means any active user account with access to the Software in creation and/or edition mode.
Deactivated user accounts and accounts used by external people (or systems) who only have
limited access to the Software through the portal facilities (known as “portal Users”) are not counted as Users.
means any failure of the Software that results in a complete stop, error traceback or security breach, and is not
directly caused by a defective installation or configuration. Non-compliance with specifications or requirements will be considered as Bugs at the discretion of Company. In general terms, a bug typically is, when the Software does not
produce the results or performance it was designed to produce.
1.11. “Confidential Information”
means information disclosed by a party (the “Disclosing Party”) 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. In particular any information
related to the business, affairs, products, developments, trade secrets, know-how, personnel, of either party should be regarded as confidential.
2. GENERAL CONDITIONS.
2.1. GENERAL TERMS; ORDER OF PRIORITY.
All terms of this Agreement including the Company agreement specific special terms (collectively, the “General Terms”), are explicitly incorporated herein by reference and are hereby accepted. Any conflict among this Master Subscription Agreement, the General Terms, and/or any Order Form, will be resolved in the following order of priority: (a) any Order Form; (b) this Master Subscription Agreement; (c) Beta Agreement – if applicable.
2.2. PROFESSIONAL SERVICES.
Company will perform the work in the Order Form and use reasonable efforts to meet any schedules set forth in the Order Form.
Customer will provide Company with reasonable support and access to its facilities, systems, materials and personnel needed to perform the
Professional Services and will be responsible for any negative impact to the services schedule to the extent Customer fails to do so.
3. BILLING AND PAYMENT.
Unless otherwise provided in the applicable Order Form, (a) Services are purchased as subscriptions,
(b) additional Authorized User subscriptions for Customer employees or other Customer designees may be added during a
subscription term at the pricing indicated in the applicable Order Form, prorated for the portion of that subscription
term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date
as the underlying subscriptions unless otherwise specified on an Order Form.
3.2. USAGE LIMITS.
Services are subject to usage limits, including, for example, the quantities specified in Order Forms corresponding to
product/service levels and number of Authorized Users under a specific Customer subscription. Unless otherwise specified,
(a) a quantity in an Order Form refers to Authorized Users specifically designated to use Customer subscriptions to a Service,
and an applicable Service may not be accessed by more than that number of Authorized Users;
(b) a product level in an Order Form refers to the volume of sheets that may be loaded by an Authorized User;
(c) an Authorized User’s password may not be shared with any other individual;
(d) an Authorized User identification may be reassigned to a new individual replacing one who no longer requires ongoing
use of the Services.
(e) it is forbidden to publish, distribute, sublicense, or sell copies of the Software or modified copies of the Software,
unless otherwise agreed to in writing by Company. If Customer or one of its Authorized Users who is designated to use a Customer subscription
exceeds a contractual usage limit, Company reserves the right to impair Customer’s (or any of its Authorized User’s)
access to the Services until Customer conforms its use to the contractual limit and/or to charge the Customer for overages.
Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form,
(i) fees are based on number of Authorized User subscriptions and product level, (ii) payment obligations are non-cancelable, (iii) fees paid are non-refundable, and (iv) quantities purchased cannot be decreased during the relevant subscription Service Term.
Customizations are requests that the Customer makes to modify the standard product. These changes include but are not limited to: adding or removing new features, fields, views, reports, workflows or other modifications.
Customizations will be billed hourly for all consulting, planning, development, testing and implementation and training that is related to the request.
Company does not guarantee a deadline for customizations completion, however we will do our best to deliver a quickly as possible. Some customizations, however small they appear, may effect other parts of the system. The Company is Not responsible to test every scenario that might be effected by the customization. It is the Customer responsibility to test and verify that the customization is correct and accurate.
The hourly rate for customizations is $150.00 per hour. This rate is subject to change.
Customizations will be billed weekly, but is at the discretion of the Company.
3.5. INVOICING AND PAYMENT.
Customer will provide Company with valid and updated credit card information, or with a valid purchase order or
alternative document reasonably acceptable to Company. If Customer provides credit card information to Company,
Customer authorizes Company to charge such credit card for all purchased Services listed in the Order Form for the
subscription term and any renewal subscription term(s) as set forth in Section 4.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form.
All monthly subscriptions and customizations must be paid by credit card.
If the Order Form specifies that payment will be by a method other than a credit card, Company will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net ten (10) days from the invoice date. Customers are responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information.
3.6. CONTRACT RENEWAL.
If no other agreement is in place, the Contract will automatically renew for a one (1) year period, and will
automatically renew each year unless thirty (30) days prior written notice is provided. If the current retail price
of the Software has changed, Software price will not increase more than fifteen percent (15%) of the
previous signed contract amount. Any new modules that are desired at the time of renewal and not included
on this contract will be in addition to the Agreement and will be billed at the time of the contract renewal.
3.7. OVERDUE CHARGES.
If any invoiced amount is not received by Company by the due date, then without limiting Company’s rights or remedies, (a) Company may charge Customer late interest fees at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Company may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 3.5 (Invoicing and Payment).
3.8. SUSPENSION OF SERVICE AND ACCELERATION.
If any amount owed by Customer under this or any other agreement for Services is thirty (30) or more calendar days overdue (or ten (10) or more calendar days overdue in the case of amounts Customer have authorized Company to charge to Customer’s credit card), Company may, without limiting Company other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services to Customer until such amounts are paid in full.
Company will provide at least five (5) business days advance notice prior to suspending a Customer account.
3.9. PAYMENT DISPUTES.
Company will not exercise Company rights under Section 3.7 (Overdue Charges) or 3.8 (Suspension of Service and Acceleration) above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently with Company to resolve the dispute.
Company subscription fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable against Customer and its Authorized Users by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Company will invoice Customer and Customer will pay that amount unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.11. FUTURE FUNCTIONALITY.
Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Company regarding future functionality or features.
4. TERM AND TERMINATION.
4.1. TERM OF AGREEMENT.
This Agreement commences on the date Customer executes it unless otherwise specified in writing on the Order form and, unless otherwise terminated as specified in the General Terms, continues until all subscriptions under an applicable Order Form hereunder have expired or have been terminated.
4.2. TERM OF PURCHASED SUBSCRIPTIONS.
The Service Term of each subscription shall be as specified in the applicable Order Form.
Except as otherwise specified in an Order Form, the then-current number of subscriptions (including any add-ons) will automatically renew at Company’s current rates for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) calendar days before the end of the relevant subscription Service Term.
4.3. RIGHTS UPON TERMINATION.
If Customer elects to terminate its subscriptions or cancel its account prior to the end of its then-effective
subscription term (A) Company will not provide any refund or credit for subscription charges or other fees or payments to Customer; and (B) in addition to other amounts Customer may owe to Company, Customer must immediately pay any then-unpaid subscription charges associated with the remainder of each applicable subscription term.
In the event that either Customer fails to fulfill any of its obligations arising herein, and if such
breach has not been remedied within 30 calendar days from the written notice of such
breach, this Agreement may be terminated immediately by Company.
Further, Company may terminate the Agreement immediately in the event Customer fails to pay
the applicable fees for the Software/Services within the due date specified on the corresponding invoice.
4.4. EFFECT OF TERMINATION.
Upon expiration or termination of this Agreement, all subscriptions and licenses granted by Company under this Agreement and Company’s obligation to provide (and Customer’s right to access and use) the Service will terminate.
5.1. BUG FIXES.
For the duration of this Agreement, Company commits to making all reasonable efforts to remedy any Bugs of the Software submitted by Customer through the appropriate channels (typically, help desk, email address, or
website form), and to start handling such submissions within 2 business days. Customer must not assume that
bugs have been received unless a valid email response has been received from Company to Customer indicating receipt.
For the term of this Agreement, Company offers a support service, with an unlimited number of tickets for bugs.
This service does not include support to customize the Software or Services, develop new modules,
reconcile and/or do bookkeeping tasks, fix user errors, or perform specific actions on your database on your behalf
(e.g. recording data, or configuring the system for you). Those services may be included in the Order Form or offered as an extra through our professional services group and quoted independently.
Support issues should be submitted online on https://twenty20.io/ or by email to firstname.lastname@example.org
In case of emergency, you can call our support teams directly for a real-time answer by calling 480-801-6060
Support is offered during normal business hours 8am – 5pm Arizona time Monday – Friday excluding legal US holidays.
You may be assigned a dedicated implementation specialist that will be based in the United States. If so, this will be your primary contact during the implementation and training phases. After that time, support may be handled by assignment to our support team.
No guarantees are provided on the time to qualify or close a support ticket, it’s based on reasonable efforts.
5.3. IMPLEMENTATION AND PROFESSIONAL SERVICES.
As indicated on the Order Form or Proposal.
Company warrants that it will use reasonable efforts to perform the Services in accordance with the
generally accepted industry standards and further provided that:
1- the Software code has not been modified, changed, or altered;
2- Customer provides adequate troubleshooting information and access so that Company can identify,
reproduce and address problems; and
3- all amounts due to Company have been paid.
Customer’s sole and exclusive remedy and Company’s ONLY OBLIGATION for any breach of the foregoing warranty is for Company to perform again the services at no additional charge.
There are no other warranties of any kind, whether express or implied or statutory. Company does not warrant that the Software, or the Service complies with any local or international law or regulations. Customer shall be solely
responsible for monitoring, enforcing and complying with any law or regulations applicable for its business.
Customer data is stored in a dedicated database. There is no sharing of data between clients. Data access control rules implement complete isolation between customer databases running on the same cluster, no access is possible from one database to another.
Customer passwords are protected with industry-standard PBKDF2+SHA512 encryption (salted + stretched for thousands of rounds). Company does not have access to your passwords, and cannot retrieve it for you, the only option if you lose it is to reset it. Login credentials are always transmitted securely over HTTPS. The Software is also equipped with password rules that allow the Customer to enforce strong passwords, as well as the ability to use 2FA
(Two factor Authentication – optional) where the user would be required to login with a username and password and then be further authenticated with Google Authentication app. The use of these features are optional and not installed by default they can be installed at the discretion of the Customer. Company is not liable for any issues resulting from poorly protected Customer passwords.
6.3. COMPANY ACCESS.
In the case that the Company needs to troubleshoot account specific issues, the first course of action will be to create a copy of your user to ensure that we are working with the same setup and security restrictions. This is a new user that will have the same setup. For most issues and troubleshooting the support team will use their own special staff credentials, not your password (which they have no way to know). This special staff access improves efficiency and security: they can immediately reproduce the problem you are seeing, you never need to share your password, and we can audit and control staff actions separately! Our Helpdesk staff strives to respect your privacy as much as possible, and only access files and settings needed to diagnose and resolve your issue.
6.4. SYSTEM SECURITY.
All web connections to client instances are protected with state-of-the-art 256-bit SSL encryption.
All our SSL certificates use robust 2048-bit modulus with full SHA-2 certificates chains. Our servers are kept in the
Google data centers under a strict security watch, and patched against the latest SSL vulnerabilities as we are made
aware of them. All Company online servers are running hardened Linux distributions with up-to-date security patches.Installations are ad-hoc and minimal to limit the number of services that could contain vulnerabilities. Only a few trusted Company engineers have clearance to remotely manage the servers – and access is only possible using SSH key pairs (password authentication disallowed). Firewalls and intrusion counter-measures help prevent unauthorized access. Automatic Distributed Denial of Service (DDoS) mitigation is implemented in US data centers.
6.5. BACKUP AND RECOVERY.
Every customer database has hourly backups for 48 hours, daily backups for 7 days, weekly backups for 4 weeks.
Except where the other party gives its consent in writing, each party, its affiliates and
representatives agree not to solicit or offer employment to any employee of the other party who is
involved in performing or using the Services under this Agreement, for the duration of the Agreement
and for a period of 12 months from the date of termination or expiration of this Agreement.
In case of any breach of the conditions of this section that leads to the termination of said
employee toward that end, the breaching party agrees to pay to the other party an amount of $75,000 USD.
For all Confidential Information received during the Term, the Receiving Party
will use the same degree of care that it uses to protect the confidentiality of its own similar
Confidential Information, but not less than reasonable care.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent
compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of
the compelled disclosure, to the extent permitted by law.
Except where notified otherwise in writing, Customer grants Company non-transferable,
non-exclusive, royalty free, worldwide license to reproduce and display Company’s name,
logos and trademarks, solely for the purpose of referring to the other party as a customer or
supplier, on websites, press releases and other marketing materials.
7.4. INDEPENDENT CONTRACTORS.
The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Services. Neither party shall have any authority to contract for or bind the other party in any manner whatsoever.
7.5. PURCHASE ORDERS.
This Agreement shall prevail over any inconsistent terms or conditions contained in, or referred to in, Customer’s
purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing. No addition to, variation of, exclusion or attempted exclusion of any term of the Agreement shall be binding on Company unless in writing and signed by a duly authorized representative of the Company.
7.6. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM CUMULATIVE AND AGGREGATE LIABILITY OF COMPANY
AND ITS AFFILIATES, SUBSIDIARIES AND RELATED COMPANIES, AND THEIR EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES, AND
AGENTS FOR ALL COSTS, LOSSES OR DAMAGES FROM CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT, WHETHER IN CONTRACT,
TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IS LIMITED TO CUSTOMER’S DIRECT DAMAGES ONLY AND SHALL NOT EXCEED FIFTY
PERCENT (50%) OF THE TOTAL AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT, DURING THE IMMEDIATE TWELVE (12) MONTH
PERIOD PRECEDING THE CLAIM.
FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER BE LIABLE TO THE OTHER FOR SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR FOR LOSS OF PROFITS, REVENUES, CONTRACTS, LOSS OF USE,
LOSS OF DATA, BUSINESS INTERRUPTION, COST OF REPLACEMENT GOODS OR SERVICES, OR FAILURE TO REALIZE EXPECTED COST SAVINGS
EVEN IF ADVISED OF THE POSSIBILITY OF SAME OR SAME WERE REASONABLY FORESEEABLE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. CUSTOMER ACKNOWLEDGES THAT THE FEES FAIRLY REFLECT THIS ALLOCATION OF
RISK AND THAT IN THE ABSENCE OF THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION, THE TERMS OF THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION THE ECONOMIC TERMS OF THIS AGREEMENT, WOULD BE SUBSTANTIALLY DIFFERENT.
NOTHING IN THIS SECTION SHALL LIMIT COMPANY’S LIABILITY FOR PERSONAL INJURY OR DEATH CAUSED BY ITS NEGLIGENCE IN THOSE
JURISDICTIONS IN WHICH SUCH LIMITATIONS ARE NOT ENFORCEABLE.
7.7. LOCAL USE DECISIONS.
Company will not provide Customer with any legal advice regarding compliance with data privacy or other relevant laws,
rules or regulations in the jurisdictions in which Customer uses the Application (“Laws”).
The parties acknowledge and agree that not all features, functions and capabilities of the Application may be used in all
jurisdictions and Customer recognizes that certain features, functions and capabilities may need to be configured
differently or not used in certain jurisdictions in order to comply with applicable local law, and in certain
jurisdictions consents may need to be obtained from individuals submitting data via the Application as to the intended
purpose, storage, distribution, access and use of the data submitted (“Local Use Decisions”). Customer is responsible
for Local Use Decisions and Company disclaims all liability for Local Use Decisions.
7.8 FORCE MAJEURE.
Neither party shall be liable to the other party for the delay in any performance or failure to render any performance
under this Agreement when such failure or delay is caused by governmental regulations, fire, strike, war, flood,
accident, epidemic, embargo, appropriation of plant or product in whole or in part by any government or public authority,
or any other cause or causes, whether of like or different nature, beyond the reasonable control of such party as long
as such cause or causes exist.
7.9 GOVERNING LAW
Both parties agree that any controversy or claim between the parties hereto related in any way to the Software and/or
Services pertaining to this contract, shall be submitted to and determined by binding arbitration in accordance
with the Federal Arbitration Act and the Commercial Arbitration Rules of the American Arbitration Association.
All arbitration hearings will be commenced within 60 days of a written request for arbitration in Phoenix, Arizona USA.
If the party requesting arbitration does not commence arbitration proceedings with 60 days of the written request for
arbitration, the other party may seek relief from a court of proper jurisdiction
In case any one or more of the provisions of this Agreement or any application thereof shall be invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this
Agreement and any application thereof shall be in no way thereby affected or impaired. Customer and Company undertake
to replace any invalid, illegal or unenforceable provision of this Agreement by a valid provision having the same
effects and objectives.
7.11 REFERRAL PROGRAM
Customer is entitled to participate in our “Customer Referral Program”. This program offers Customer a way to extend
the term without incurring additional cost. With this program, if Customer refers another company to us that ends up
subscribing to the Software/Service, Company will extend the Term of the active contract by 3 additional months per