Subscription Agreement Terms of Service


This Subscription Agreement (“Agreement”) is made and entered into as of the Effective Date of the first Order Form executed between HJB Consulting Ltd t/a Matter-Center (Registered in England & Wales 7330082) (“Matter-Center”) and the Client, described in such Order Form (“Client”).

The terms and conditions of this Agreement shall govern the Services to be provided by Matter-Center under any Order Form submitted by Client and accepted by Matter-Center, as though the provisions of this Agreement were set forth in their entirety within such Order Form, and so that each Order Form and this Agreement shall be considered one, fully integrated document and agreement. Client agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Matter-Center regarding future functionality or features.

  1. Definitions

Affiliates means, with respect to either party, any individuals, companies, corporations, partnerships or other entities, directly or indirectly, controlling, controlled by, or under common control with, such party.

IP means:

(a) patents, trademarks, services marks, design rights (whether registered or unregistered and including any applications for these rights);

(b) copyright (including future copyright) throughout the world in all literary works, artistic works, computer service, and any other works or subject matter in which copyright subsists and may in the future subsist;

(c) trade or business names; and

(d) know-how, confidential information and trade secrets, and any other similar rights or obligations whether registrable or not in any country.

Material means material in any form, including documents, reports, products, equipment, information, data, source code, service, service tools, and methodologies.

Order Form means an ordering document that specifies the Services purchased by Client under this Agreement. Each Order Form shall include the Service ordered, capacity (number of Users) pricing, sold to, and the Term. Order Forms shall be subject solely to and incorporate by reference the terms of this Agreement.

Service means our proprietary service products and includes the documentation and all other associated Material provided by us in relation to that service.

Service Subscription Fee means the relevant subscription fee for the Service stated on the Order Form.

Service Subscription License is a limited-time (non-perpetual), non-exclusive, non-transferable, license to use the Service in accordance with this Agreement. The service is licensed to you, not sold to you.

Support means the support, assurance, new releases and related maintenance services for the Service and includes the Support Documentation and all other associated Material provided by us in relation to that support.

Term means the period identified on an Order Form, or on a renewal document, during which Client’s Users are authorized to use or access the Service pursuant to the terms set forth in this Agreement, unless earlier terminated pursuant to Section 7.

  1. Grant of License

2.1 In consideration of your payment of the non-cancellable and non-refundable Service Subscription Fee set out on the Order Form, and subject to the terms and conditions of this Agreement, Matter-Center hereby grants Client a non-exclusive, non-transferable, non-assignable, worldwide limited license to use the Services provided hereunder solely for Client’s own business purposes and only for number of Users and time periods as set forth in each fully executed Order Form. All rights not expressly granted to Client are reserved by Matter-Center and its licensors. Matter-Center reserves the right to make changes, modifications and enhancements to the Services from time to time.

2.2 The service will be configured for use with one (1) Microsoft Azure Active Directory and one associated (1) Microsoft Office 365 tenancy.

2.3 The service is licensed for a maximum number of users during the subscription period, and may be configured for use by the maximum number of individual users specified on the most recent Service subscription Fee sales invoice.

2.4 In the event that we make available to you a service upgrade or update, add-on component, web service and/or supplement (whether in conjunction with providing Support or otherwise), the terms of this Agreement will apply.

  1. Warranties

3.1 The Service and associated software has not been designed to meet your individual requirements and is supplied on an “as is” basis. A failure of any part or the whole of the Service to be suitable for your requirements will not give rise to any right or claim against us.

3.2 Our sole warranties in connection with the Service are that:

(a) it will work substantially in the manner described on our public website www.matter-center.com and the Service Documentation for the period of the Service Subscription License; and

(b) it does not infringe the IP of any person.

3.3 Your sole remedy for any breach of the warranties in clause 3.2 is that we must, at our option, use commercially reasonable efforts to either:

(a) modify the Service; or

(b) replace the Service with service of substantially similar functionality, so as to correct any defect or to render its use non infringing (as the case may be) PROVIDED THAT the identified defect or infringement has not been caused by:

(i) any modification, variation or addition to the Service not performed by us;

(ii) incorrect use, abuse or corruption of the Service;

(iii) the use of the Service with other service or on equipment with which it is incompatible; or

(iv) any other damage to the Service. You must provide sufficient information about any defect to enable us to reproduce it on our systems.

3.4 You acknowledge that the Service in general is not free of errors or defects and agree that the existence of any errors or defects will not constitute a breach of this Agreement.

  1. Confidentiality

4.1 You acknowledge that the ideas and expressions contained in the Service and any modifications or particulars of them that may be provided to you by us are confidential (except to the extent that they have entered the public domain other than through a breach of this Agreement by you). You undertake not to disclose this confidential information to any person other than your agents and employees and then only to enable the Service to be used in accordance with and for the purposes of this Agreement. You must ensure that these persons maintain this confidentiality.

4.2 You must not remove, delete or obscure any copyright notices or confidentiality notices on or in the Service.

  1. Support and Maintenance

The Service subscription Fee includes Support and Maintenance for the time period of the subscription, the scope of which are:

(a) New Service Releases – including service patches, bug fixes, modifications and updates (collectively, “Service Updates”); and

(b) Email help@matter-center.com submission of technical product incidents. We will use commercially reasonable efforts to provide an initial response within 8 UK working hours of our receipt of the incident; and

(c) Access to on-line self-help tools and how-to information to help troubleshoot issues.

  1. Intellectual Property (IP) Ownership

6.1 You acknowledge that, except for the limited license rights expressly provided herein, we have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Service.

6.2 You shall not (except to the extent permitted by any law that cannot be excluded):

(a) copy, modify, enhance or reproduce the Service, in whole or in part (other than in accordance with clause 2.2);

(b) reverse-engineer, reverse-translate, disassemble, de-compile, or otherwise attempt to derive source code to the Service;

(c) incorporate, embed, combine, merge or bundle the Service with any other hardware or service (except to the extent strictly necessary to use the Service in accordance with its intended purpose and these terms); and

(d) directly or indirectly permit any third party to do any of the above.

6.3 If you become aware of any infringements or suspected infringements by any third party of any IP in the Service or Support, you must immediately notify us.

6.4 You must at our request and expense take any action as we reasonably deem is appropriate to protect our IP.

  1. Termination

7.1 We may terminate this Agreement if you fail to cure any material breach of this Agreement within 14 days of becoming aware of the breach.

7.2 On termination of this Agreement, you must immediately cease to use the Service and remove the Service from your environments, providing a declaration to us that you have complied with this clause 7.2. This requirement is without prejudice to any other rights and remedies that we may have in respect of the breach.

7.3 Clauses 4, 6 and 8 survive the expiration or termination of this Agreement. Clause 4.1 expires 3 years after the date of termination or expiry of this Agreement.

  1. Limitation of liability and indemnity

8.1 in no event will we be liable to you or any other person for any lost profits, lost savings, deletion or corruption of electronically stored information, lost data, or other special, direct, indirect, punitive, consequential, or incidental damages arising out of or relating to this agreement or any service, support or other products or services furnished or to be furnished under this agreement or the use thereof, even if we have been advised of the possibility of such loss or damage.

8.2 our aggregate liability upon any claims howsoever arising out of or relating to this agreement or any service, support or other products or services furnished or to be furnished by us under this agreement will in any event be absolutely limited to the amount paid by you to us under this agreement for the applicable service, support or other products or services.

8.3 you acknowledge that we have set our prices and entered into this agreement in reliance upon the warranties, disclaimers and limitation of liability set out in this agreement, and that these form an essential basis of the bargain reached between the parties. The parties agree that the limitations of liability specified in clause 8 will survive and apply even if any clause is found to have failed its essential purpose. Notwithstanding this, nothing contained in this agreement will limit our liability for our own wilful or wanton conduct.

8.4 you must indemnify us in respect of all loss, damages and expenses and all claims and demands made by a third party arising out of any of the following:

(a) your breach of this agreement; and

(b) any negligent, wilful or fraudulent conduct by you, your employees, representatives or agents.

8.5 We make no warranty or representation to you as to the performance or operation of the service, support or any other products or services except as provided for in clause 3. We make no other warranty express or implied with respect to us, the service, support or other products or services provided by us and, subject to this clause, any condition or warranty which would otherwise be implied in this agreement is hereby excluded. Where legislation implies in this agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, that condition or warranty will be deemed to be included in this agreement. However, our liability for any breach of such condition or warranty will be limited, at our option, to one or more of the following:

(a) if the breach relates to goods:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of such goods;

(iii)the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv) the payment of the cost of having the goods repaired; and

(b) if the breach relates to services:

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

8.6 despite any other provision in this agreement, we do not exclude liability for death or personal injury to the extent that the same arises directly from our negligence or the negligence of our employees.

8.7 No liability for open source materials. The service may contain “open source” materials (e.g., any service subject to open source, copyleft, gnu general public license, library general public license, lesser general public license, mozilla license, berkeley service distribution license, open source initiative license, mit, apache or public domain licenses, or similar license).  To the extent permissible at law we make no warranties, and shall have no liability, direct or indirect, whatsoever with respect to open source materials contained in the service.

8.8 Indemnity against Infringement of Third Party Intellectual Property Rights

(a) We shall indemnify you against all actions, claims, proceedings, damages and costs arising from or incurred by reason of any infringement of a third party’s intellectual property rights by the use or possession by you of our service Licensed under this Agreement, subject to the following provisions:

(i) You shall promptly notify us in writing of any alleged infringement of which it has notice;

(ii) You shall make no admissions without our consent and shall allow us to conduct and/or settle all negotiations and litigation and shall give us all reasonable assistance. We shall bear the cost of any such negotiations or litigation and any costs incurred or recovered in such negotiations or litigation shall belong to us;

(iii) We shall not be liable to indemnify you in respect of any infringement caused directly or indirectly by our adherence to instructions given by you;

(iv) We  shall use its reasonable endeavours to modify the result of any service so that it becomes non-infringing;

(v) if at any time any allegation of infringement of third party rights is made, or in our reasonable opinion is likely to be made in respect of the result of any service provided under this agreement, we may at our own expense modify the service without detracting from the performance of our obligations under this Agreement.

(b) You shall indemnify us against all actions, claims, proceedings, damages and costs arising from or incurred by reason of any infringement of a third party’s intellectual property rights by the use or possession by us of any materials or data provided to us by you for the purposes of performing its obligations under this Agreement, subject to the following provisions:

(i) We shall promptly notify you in writing of any alleged infringement of which it has notice;

(ii) We shall make no admissions without your consent and shall allow you to conduct and/or settle all negotiations and litigation and shall give you all reasonable assistance. You shall bear the cost of any such negotiations or litigation and any costs incurred or recovered in such negotiations or litigation shall belong to you.

  1. General

9.1 With reasonable prior notice, we may audit your use of the Service, provided such audit is during regular business hours. You shall cooperate with our audit and provide reasonable assistance and access to information. You shall pay within 30 days of written notification any fees applicable to your use of the Service in excess of your license rights. We shall not be responsible for any of your costs incurred in cooperating with the audit. You shall pay the reasonable costs of such audit if the audit reveals you have exceeded your license rights.

9.2  Severability. If any provision of this Agreement shall be held by a competent court to be illegal or unenforceable in whole or in part, the remaining provisions shall remain in full force and effect.

9.3 This Agreement constitutes the entire agreement between the parties as to its subject matter and supersedes all prior communications in connection with that subject matter. The parties acknowledge that, except as expressly stated in this Agreement, they have not relied on any representation, warranty or undertaking of any kind made by or on behalf of the other party in relation to this Agreement.

9.4 This Agreement may only be amended in writing signed by both parties.

9.5 Each party warrants that it has the authority, power and capability to enter into and to perform its obligations under this Agreement and that its obligations under this Agreement are binding and enforceable.

9.6 Neither party will be liable for any failure to perform its obligations under this Agreement (other than an obligation to pay money) if the party is prevented from doing so by any cause beyond its reasonable control.

9.7 Each term of this Agreement must be interpreted in such manner as to be effective and valid under applicable law. If any term of this Agreement is held to be prohibited by or invalid under applicable law, that term is ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.

9.8 A term of this Agreement may not be waived except in writing signed by the party granting the waiver. The waiver by a party of a breach by another party of any term of this Agreement does not operate as a waiver of another or continuing breach by that party of that term or any other term of this Agreement.

9.9 You must not assign or novate any of your rights or obligations under this Agreement without our prior written consent (which we may withhold in our absolute discretion). We may assign or novate any of our rights or obligations under this Agreement to any person by notice to you.

9.10 This Agreement shall be governed by and construed in accordance with English law and the parties agree to submit to the non-exclusive jurisdiction of the English courts.

Nothing in this section shall restrict our right to bring an action (including for example a motion for injunctive relief) against you in the jurisdiction where your place of business is located. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement.

Source www.matter-center.com/terms-of-service

Edition [01] 01 July 2016