Zovy Subscription Services Agreement


This Subscription Services Agreement (the "Agreement") is hereby entered into by and between Zovy LLC (referred to as "Zovy") and the customer.

Article 1.  Selected Definitions.

1.1  "Archiving Fee" means the fee due and payable for the services provided pursuant to this Agreement.

1.2  ""Client Management Services" shall have the meaning ascribed thereto in an applicable Order Form.

1.3  "Customer Data" means all data that Customer or its agents transmit or deliver to Zovy in connection with the Subscription Services. In the case of the Zovy Archive Services, Customer Data shall only include such data transmitted for purposes of archiving and storing same in the Zovy Archive System.

1.4  "Documentation" means the standard written technical specifications delivered by Zovy to Customer together with the Subscription Services, as applicable.

1.5  "Order Form" means a fully executed proposal, purchase order or quote executed by both parties which specifies Services to be provided by Zovy under this Agreement and the charges and fees due therefor.

1.6  "Professional Services" means those services performed by Zovy pursuant to a SOW or Order Form between the parties, the nature of which are typically performed on a per-hour or per-day basis. For the avoidance of doubt, Professional Services shall not include any of the Subscription Services.

1.7  "Zovy Archive System" means the computer system comprised of hardware and software pursuant to which Zovy provides the Subscription Services.

1.8  "Scheduled Maintenance" means regularly-scheduled system and software updating and maintenance services performed by Zovy on the Zovy Archive System.

1.9  "Services" means any services provided by Zovy under this Agreement, including without limitation the Subscription Services.

1.10  "SOW" means a Statement of Work executed by Customer and Zovy, pursuant to which Zovy may perform Professional Services.

1.11  "Subscription Services" means Zovy's hosted online electronic communications archiving and management solution that enables Customer to archive its electronic communications and enables Users to search and review such communication (as same is more fully described in the Documentation), offered by Zovy on a fixed-term, subscription basis and provided by Zovy pursuant to an Order Form hereunder.

1.12  "Subscription Term" shall mean, as applicable, the term of any Subscription Service purchased by Customer hereunder, as same is specified on an Order Form.

1.13  "Technology" means the Subscription Services and any technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material, Documentation or information utilized by Zovy in connection with the provision of the Services, excluding in all cases the Customer Data.

1.14  "Users" shall be defined as Customer's employee, consultants, contractors or agents who are authorized to use a Subscription Service and have been supplied user identifications and passwords by Customer (or by Zovy at Customer's request).

Article 2:  Order Forms. Services shall be ordered by Customer pursuant to Order Forms; Each Order Form shall be subject to the terms of this Agreement and shall include at a minimum a description of the Services being ordered, the Subscription Term applicable thereto if any, and the fees associated therewith. Once Zovy accepts an Order Form, such Order Form shall represent a binding agreement whereby Zovy agrees to provide and Customer agrees to purchase the Services ordered thereunder.

Article 3:  Subscription Services.

3.1 License.

     3.1.1  Subscription Services. Zovy hereby grants Customer and its Users a non-exclusive, non-transferable, non-sublicenseable right to access and use the Subscription Service(s) during the applicable Subscription Term(s), in accordance with the terms of this Agreement.

3.2  License Restrictions. Customer and its Users shall not, directly or indirectly, in whole or in part: (i) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of the Subscription Services; (ii) allow any third-party to access the Subscription Services, or sell, rent, sublicense, distribute, disclose, publish, assign, commercially share (including time share), or otherwise transfer any rights in the Subscription Services, without Zovy's prior written consent; (iii) use the Subscription Services for service bureau services including, without limitation, providing third party hosting, or third party application integration or application service provider type services, or for any similar services; (iv) do, or permit to be done, anything which shall adversely affect Zovy's right, title or interest in or to the Subscription Services; (v) use the Subscription Services in a manner that is contrary to applicable law or in violation of any third party rights of privacy; and (vi) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Zovy Archive System or the Subscription Services.

3.3  Ownership.; As between Zovy and Customer, all title and ownership of all proprietary rights in and to the Customer Data is and will at all times remain the property of Customer. Title and ownership of all proprietary rights, including any copyright, patent, trade secret, trademark or other intellectual property rights, in and to the Zovy Technology (including, without limitation, the Subscription Services) and any copies thereof, including all updates, enhancements and modifications thereto, is and will at all times remain the property of Zovy and its licensors. Zovy and its licensors retain all right, title and interest in and to the Subscription Services that are not specifically granted to Customer hereunder. Customer shall not remove or obliterate any copyright, trademark or proprietary rights notice of Zovy or its licensors from the Subscription Service and shall reproduce all such notices on all authorized copies thereof.

3.4  Upgrades on Subscription Services. Zovy may upgrade the software accessed and used by Customer through use of the Subscription Service(s) to new versions of such software, or install patches, service packs or the like at any time without notice to Customer. Certain upgrades may introduce new functionality modules which will be made available to Customer on an optional basis for an additional fee; Customer will be given prior notice of any additional fees that may apply for such new modules, and an option to accept or reject use of such new modules.

3.5  Maintenance.

     3.5.1 Scheduled Maintenance. Zovy performs regularly Scheduled Maintenance on the Zovy Archive system currently scheduled between Sunday at 12pm EDT and Sunday 8pm EDT. Zovy may change the times during which it performs such Scheduled Maintenance upon written notice to Customer. During such Scheduled Maintenance, new messages will not be archived and indexed until the Scheduled Maintenance is concluded, and all previously archived messages in the Zovy Archive System will be unavailable for Customer access for viewing, searching and retrieval.

     3.5.2  Emergency Maintenance. Zovy reserves the right to perform emergency maintenance services on the Zovy Archive System at any time and without prior notice to Customer. All or a portion of the Subscription Services may be unavailable during any period of such emergency maintenance. 3.6 Network Connections and Hardware; Customer

3.6  Network Connections and Hardware; Customer Media. Customer shall be solely responsible for procuring and maintaining the network connections that connect the Customer network to the Zovy Archive System, as well as any firewalls and encryption methods it deems appropriate. In addition, Customer shall be solely responsible for procuring and maintaining any hardware located at a Customer site and utilized in connection with a Subscription Service. Zovy assumes no responsibility for the reliability or performance of any connections or hardware as described in this Section. In connection with any Services involving Customer's delivery of physical media containing Customer Data, Customer will deliver to Zovy only copies of tangible media, not originals, or will create appropriate backups of the Customer Data contained on any original media that is delivered to Zovy. Zovy shall not be liable for any losses, liabilities, damages, or claims related to any damage or destruction to the physical media delivered by Customer hereunder or to the Customer Data residing thereon.

Article 4:  Term and Termination.

4.1  Term. The term of the Agreement shall end upon the earlier of (a) expiration of the Subscription Term, or (b) termination of this Agreement in accordance with its terms.

4.2  Termination. This Agreement may be terminated by either party on thirty (30) days written notice to the other party if the other party breaches any material obligation hereunder and such breach is not cured within such thirty (30) day period, unless such breach cannot be cured, in which case this Agreement shall immediately terminate upon notification of termination. Without prejudice to any other rights to which it may be entitled, Zovy may terminate this Agreement immediately if Customer: (a) becomes insolvent, (b) makes an assignment for the benefit of creditors, (c) files or has filed against it a petition in bankruptcy or seeking reorganization, (d) has a receiver appointed, (e) ceases conducting business in the normal course, or (f) institutes any proceeding for liquidation or winding up; provided, however, that, in the case any of the foregoing is involuntary, Customer shall only be in breach if such petition or proceeding has not been dismissed within thirty (30) days. Upon termination, Zovy will cease providing all Services, and each party shall promptly return or destroy the other party's Confidential Information, provided that Customer Data will be handled in accordance with the provisions of the Section 5.4. In addition, Customer shall immediately remove and cease all use of the Subscription Services and certify in writing to Zovy that Customer has complied with the foregoing obligations. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Zovy prior to the effective date of termination and any payment obligations arising under any Order Form prior to the effective date of termination (including, without limitation, any cancellation fees or minimum commitments) shall survive termination or expiration of this Agreement. The following articles and sections of this Agreement shall survive termination of the Agreement: Articles 1, 7, 9, 10, and 11, and Sections 3.2, 3.3, 3.6, 4.2, 5.1, 5.2, 5.3, and 5.4.

Article 5.  Subscription Service Terms.

5.1  Subcontractors. Zovy will use subcontractors in performance of the Services. Customer acknowledges and agrees that, in connection with the Subscription Services, Zovy will use third-party data centers to store, monitor and maintain the hardware equipment on which Customer Data is stored ("Data Centers"). The personnel of such Data Centers shall have access to the physical equipment upon which the Customer Data is stored, but shall not have access to the Customer Data itself. In addition, Customer acknowledges and agrees that, in connection with the Subscription Services, Zovy may use third parties to physically store backup media containing Customer Data, as well as to provide destruction services on such media as and when requested by Zovy (the "Backup Storage Provider" and, together with the Data Centers, the "Third Party Vendors"). The personnel of such Backup Storage Provider shall have access to the backup media containing the Customer Data, but shall not access to the Customer Data itself. Zovy may change Third Party Vendors and relocate the Customer Data from time to time. With respect to all subcontractors which Zovy utilizes in connection with the Services (including the Third Party Vendors), Zovy shall assume the same liability and responsibility for that subcontractor's conduct and performance as if Zovy performed all of the subcontractor's services. Customer will not incur any additional fees, costs or charges with regard to any subcontract.

5.2  Third Party Information Requests. If Zovy receives a subpoena or other discovery request from a civil litigation or governmental agency, court, panel or body or any other entity exercising functions of a government or political subdivision thereof, including, but not limited to the U.S. Securities and Exchange Commission and self regulatory organizations (e.g., the National Association of Securities Dealers and the New York Stock Exchange) seeking data, other information or testimony relating to Customer (a "Request"), then Zovy shall promptly notify Customer of such Request and shall respond to such Request solely at Customer's direction, unless and to the extent prohibited under applicable law. Customer shall reimburse Zovy for all reasonable attorneys' fees and costs which Zovy may incur in connection with a Request, shall indemnify and hold Zovy harmless from and against any and all costs, liabilities or damages arising out of related to Zovy's responding to the Request pursuant to Customer's direction, and shall pay Zovy at its then-current rates for any Professional Services and/or Client Management Services which may be required in responding to such Request.

5.3  Customer Data Retention. Unless otherwise specified on an Order Form, the fees payable by Customer for the Subscription Services shall constitute payment for the capture, indexing and archiving of Customer Data for a period of three (3) years. As used herein, the term "Zovy Archive Retention Expiration Date" shall mean the date on which a specific set of Customer Data has been archived for a period of three (3) years (or for such longer or shorter period if and as specified on an Order Form), and the "Retention Period" shall mean the period beginning on the date such Customer Data is archived and ending on such Zovy Archive Retention Expiration Date. Absent written notice from Customer to the contrary, as Customer Data reaches its Zovy Archive Retention Expiration Date, the archiving of such Customer Data shall automatically convert to extended archiving for consecutive one-year terms ("Zovy Archive Extended Archiving") at the fees listed under an applicable Order Form, or, if none, Zovy's then-current list rates. The fees for Zovy Archive Extended Archiving shall appear as a separate item on Customer's monthly invoices, and shall be based on the volume of Customer Data that has reached its Zovy Archive Retention Expiration Date during such month. Customer may at any time provide Zovy with written notice that it elects to discontinue Zovy Archive Extended Archiving, provided that such notice must also contain an instruction to Zovy to either destroy or return Customer Data as set forth in Section 5.4 in lieu of Zovy Archive Extended Archiving, and Customer shall remain obligated for the payment of fees for Zovy Archive Extended Archiving incurred prior to the date of such notice.

5.4  Return and Deletion of Customer Data. At any time during an applicable Subscription Term, Customer may request that Zovy perform Data Return Services and/or Data Deletion Services on any or all of the Customer Data. Zovy shall comply with such request, (a) except to the extent prohibited by applicable law, (b) except with respect to Customer Data that has not yet reached its retention expiration date based on Customer's previously defined records retention policies, which shall not be deleted by Zovy, and (c) except in the event Customer has not paid in full all fees due and owing hereunder through the date of such request. Unless otherwise specified on an Order Form, Customer Data that is deleted shall be deleted from the storage cell and/or raid configured disk, using standard deletion methods and deleted from the index of the Zovy Archive System. Data deletion does not destroy or automatically overwrite the data, but renders the data unsearchable and inaccessible through the Zovy Archive System. Unless otherwise specified on an Order Form, the fees for Data Return Services and Data Deletion Services shall be based on Zovy's then-current rates for such Services. Within thirty (30) days following termination of the Agreement, Customer shall send written notice to Zovy instructing it to return and/or delete all Customer Data. In the absence of such instruction, Zovy may return all Customer Data to Customer on a medium and in a format of Zovy's choice, and Customer shall remain obligated for the payment of fees associated with such return. Notwithstanding the foregoing or Customer's directions or anything else to the contrary, however, Customer agrees that in the event this Agreement becomes terminated and Customer has not paid in full all amounts due and owing under this Agreement through the effective date of such termination, then Zovy may immediately destroy Customer Data without any liability to Customer and shall have no obligation to return Customer Data to Customer.

Article 6:  Fees and Payment.

6.1  Fees, Payment, and Delivery. Unless otherwise expressly provided on an Order Form, fees shall be invoiced as follows:

     6.1.1  Subscription Service Fees. During the Subscription Term, fees for all Subscription Services shall be invoiced annually or monthly (as may be set forth in an applicable Order Form) in advance commencing on the execution of the applicable Order Form or in arrears, if so specified in an Order Form.

     6.1.2 Other Service Fees. Fees for all Services other than the Subscription Services will be invoiced at the beginning of each month in which such Services are provided. Customer agrees to reimburse Zovy for any incidental costs, including but not limited to travel costs, incurred in relation to the provision of such Services.

Unless otherwise agreed to in writing, Customer agrees to pay Zovy the fees set forth in the applicable invoice within thirty (30) days from the date of invoice. All fees are exclusive of shipping, taxes, duties and other similar fees, all of which shall be the responsibility of and shall be paid by Customer. A service charge of one and one-half (1.5%) percent per month will be applied to all overdue invoices. Customer agrees to pay for all reasonable costs (including reasonable attorneys' fees) incurred in collecting past due amounts under this Agreement.

6.2  Expenses. Customer will reimburse Zovy for any costs incurred with respect to dedicated network connectivity services obtained or required in connection with any Subscription Services (e.g., a virtual private network (VPN) or dedicated T1 lines). Customer will also reimburse Zovy for reasonable travel expenses incurred in connection with the Services.

6.3  Suspension of Services. Customer understands and agrees that if Customer's account is thirty (30) days or more overdue, then in addition to any of its other rights or remedies, Zovy reserves the right to suspend all Services until such amounts are paid in full and Zovy shall have no liability to Customer in connection with or as a result of the same.

Article 7:  Confidentiality. Except as expressly and unambiguously permitted hereunder, each party shall hold in confidence and not use or disclose any materials or information disclosed by the other party during the term of this Agreement that are confidential or proprietary, or which may be reasonably regarded as the confidential information of such party ("Confidential Information"). Confidential Information will also include the Documentation, the terms of this Agreement, and any new product information or the results of any benchmark or similar tests on the Services conducted by Customer or divulged by Customer to Zovy. Each party shall treat the other party's Confidential Information with at least the same degree of care it uses to prevent unauthorized disclosure or use of its own Confidential Information, but in no event less than reasonable care. Confidential Information will not include any materials or information that the recipient can prove (i) is now, or later becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public; (ii) is known by the receiving party at the time of disclosure as evidenced by its records; (iii) is furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the receiving party without any breach of this Agreement; (v) is the subject of a written permission to disclose provided by the disclosing party; or (vi) is disclosed in response to a valid order of a court or other governmental body.

Article 8.  Warranties.

8.1  Services Warranty and Remedies. Subject to Section 8.2 below, Zovy warrants that (a) the Subscription Services shall perform materially in accordance with the applicable Documentation and (b) all Professional Services, Client Management Services, and other Services shall be performed in accordance with the terms of an applicable SOW and in a professional and workmanlike manner, commensurate with industry standards for like services. In the event of a breach of the foregoing warranty, Zovy shall at its sole expense re-perform the applicable Services in a manner that is compliant with such warranty. The warranties set forth in this Section 8.1 are made to and for the benefit of Customer only. Such warranties shall only apply if (a) the applicable Services have been utilized in accordance with the Documentation, this Agreement and applicable law and (b) no modification, alteration or addition has been made to the applicable Services. The rights and remedies granted Customer under this Section 8.1 state Zovy's entire liability, and Customer's exclusive remedy, with respect to any breach of the warranty set forth in this Section 8.1.


Article 9:  Infringement of Third Party Intellectual Property Rights.

9.1   Customer agrees to promptly notify Zovy of any known or suspected infringement or breach of Zovy's proprietary rights. Zovy or its licensors shall have the exclusive right to institute infringement or other appropriate legal action against any alleged, prospective or actual infringement of Zovy's or its licensor's intellectual property rights, and shall retain all money received from such action. If the Subscription Services become or, in Zovy's or its licensor's opinion are likely to become, the subject of a claim that it infringes the rights of any third party, Customer will permit Zovy, at Zovy's expense, to either: (i) procure the right for Customer to continue using the Subscription Services, (ii) replace and modify the Subscription Services with non-infringing services; or (iii) terminate this Agreement and refund any fees prepaid Subscription Services not yet received depreciated over a straight line basis pro rata over five years. Notwithstanding the foregoing, Zovy shall not be liable for any such claim that arises as a result of: (a) any modification of Subscription Services by any party other than Zovy; (b) use of the Subscription Services otherwise than in accordance with the Documentation; or (c) combination of the Subscription Services with hardware or other software, if such claim would have been avoided by not so combining such Subscription Services. THE FOREGOING STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND.

9.2   Customer will defend, indemnify and hold Zovy harmless against all amounts finally awarded to a third party by a court or arbitrator, or paid to a third party in a settlement approved in writing by Customer, to the extent related to claims, demands, suits or proceedings brought against Zovy by a third party based on (a) Customer's use of the Services or Customer Data in violation of applicable law or (b) destruction of Customer Data in accordance with instructions from Customer.

9.3   The party seeking indemnity under this Article 9 ("Indemnitee") will give the other party ("Indemnitor") the following: (a) prompt written notice any claim for which the Indemnitee intends to seek indemnity, (b) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the claim, and (c) sole control over the defense and settlement of the claim, provided that (i) the Indemnitee may participate in the defense of the Claim at its sole expense, and (ii) the Indemnitor may not, without the prior written consent of the Indemnitee, enter into a settlement to the extent such settlement restricts the business or operations of Indemnitee except for settlements entered into by Zovy that restrict Customer's right to continue use of the allegedly infringing Subscription Services, as applicable.

Article 10:  Indemnification.
Except as expressly provided in this Agreement, Customer shall indemnify, defend and hold harmless Zovy and its officers, directors, employees and agents, from and against any and all claims, demands, liabilities, losses, costs and expenses (including reasonable attorneys fees) of any kind whatsoever levied against or incurred by ZOVY, its officers, directors, employees, and agents, arising directly or indirectly out of this Agreement.

Article 11:  Limitations on Liability.

Article 12:  Marketing, Publicity and Branding. Customer shall reasonably assist Zovy in the creation and where applicable distribution of marketing and publicity-related materials in respect of the subject matter of this Agreement. Customer agrees that Zovy may use Customer's name to identify Customer as a Zovy customer. Each party's use of the other party's trademarks and logos will be in accordance with such other party's policies in effect from time to time.

Article 13:  Miscellaneous. This Agreement together with all Order Forms, contains the full and complete understanding of the parties as to the subject matter hereof and may not be altered or modified, except by written amendment which expressly refers to this Agreement and which is executed by both Zovy and Customer. The parties expressly agree that this Agreement supersedes all prior or contemporaneous proposals and all other oral or written understandings, representations, conditions, and other communications between the parties relating to such subject matter, as well as the terms of all contemporaneous or future purchase orders. Unless the parties expressly agree otherwise in writing, in the event of a conflict or ambiguity between or among the provisions of this Agreement and an Order Form, the following shall be the order of precedence: first, the Order Form; second, this Agreement. Any terms and conditions contained in any purchase order or other ancillary purchase documents issued by Customer shall be of no force or effect. Customer shall not transfer or assign this Agreement or any services to be provided hereunder in whole or in part, or any rights or obligations hereunder, under operation of law, change of control, or otherwise, without the prior written consent of Zovy. Any attempted assignment or transfer in violation of the foregoing will be void. Customer agrees that it will not export or re-export any Services without the appropriate United States Government or any other government licenses. This Agreement will be governed and interpreted in accordance with the laws of the United States and the state of Delaware, without giving effect to principles of conflicts of law. The parties agree that the United Nations Convention on Contracts for the International Sales of Goods is specifically excluded from application to this Agreement. Any litigation relating to the formation, interpretation or alleged breach of this Agreement must be brought exclusively in the state and federal courts having jurisdiction in Delaware, and the parties irrevocably consent to the jurisdiction of such courts. All notices required under this Agreement shall be in writing and shall be deemed effective: (i) one (1) day after deposit with a commercial overnight carrier, with written verification of actual receipt or (ii) upon confirmation of receipt generated by the sending device, if sent by facsimile. All notices must be delivered to the Legal Department of the other party to the applicable address on the first page hereof or to such other address as the parties may designate in writing. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party or its subcontractors, the party so affected shall be excused from such performance to the extent of such prevention or restriction. Zovy will have the right to inspect Customer's books, records and systems at Customer's facility as reasonably necessary to verify that Customer's use of the Subscription Services complies with this Agreement. Zovy shall provide Customer with reasonable notice prior to any inspections. Zovy shall bear all costs and expenses associated with the exercise of these rights, unless such inspection reveals that Customer is not in compliance with this Agreement, in which case, Customer shall pay Zovy the reasonable costs of such inspection plus any additional fees related to unauthorized use of Services. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. The failure of a party to insist on the performance of an obligation hereunder shall not be deemed to be a waiver of such obligation or of any other obligation. The parties acknowledge and agree that a breach of this Agreement adversely affecting Zovy's proprietary rights would cause irreparable harm to Zovy for which a remedy at law would be inadequate and that Zovy shall be entitled to injunctive relief in addition to any remedies it may have hereunder or at law.