Terms and Conditions

By executing the Order Form for Services and creation of an online account, the undersigned Client accepts and agrees to be bound by these terms and conditions for IOTAP Inc. (“Company”)’s Work 365 Subscription.

FEES, PAYMENT, AND DELIVERY

1. Unless specified otherwise in an Order Form or Statement of Work, Client will pay Company its fees (the “Fees”) in advance of the month in which they are due for Subscriptions and services performed under this Agreement. Fees for Subscriptions are nonrefundable.
2. Late Payments and Payment Methods: If payment is not received when due, Company may: (a) accrue interest at the lesser of 1% per month or the highest rate permitted in law, and/or (b) discontinue the provision of Subscriptions and services. A late fee of the lesser of 5% of the Fee that is overdue or $50.00 will be due on any payments made three (3) days or more after the due date. A client has no right of set-off. Payments may be made via credit card or other approved payment method as offered by Company from time to time. A company may require that a Client keep a credit card on file for automatic payment of Fees.
3. Fee Changes: Company reserves the right to modify the Fees, at any time upon notice to Client. The written notice under this section may be provided via Company’s website and/or an online Client portal. A company may offer other products, services, and subscriptions from time to time. For a full list of options, see Company’s website.

LICENSE/AUTHORIZED USE

A. License Grant: Subject to the terms and conditions of the Agreement, Company grants to Client, a License to use the Subscriptions on the Order Form. The company offers four different Subscription Types:

1. Consumption Subscription: Client pays based on actual usage in the preceding month with no upfront commitment. Payment is on a periodic regular basis in arrears, via credit card or automatic payment method.
2. Commitment Subscription: Client commits in advance to purchase a specific Subscription for use during a Term and to pay up front or on a periodic basis in advance of use.
3. User-Tier Subscription: Client’s Fees are determined based on the quantity and type of Authorized Users and are payable upfront in advance of use.
4. Free Trial and Internal Use Only Subscription: Client receives a subscription at no cost that may be limited in duration and/or terms of use. Support and certain Subscription features may be limited in Free Trial and/or Internal Use Subscriptions.

B. Subscription Restrictions: Client must not reverse engineer, disassemble, decompile, create derivative works, or otherwise alter or modify Subscriptions provided hereunder. A client may not transfer, sublicense, relicense or commercially exploit Subscriptions; or use Subscriptions for third party transactions, commercial time-sharing, rental, or service bureau use; or otherwise reproduce, directly or indirectly, Subscriptions in whole or in part, or any related materials.

C. Protection of Company Intellectual Property: Client must take all reasonable steps to ensure that no unauthorized persons have access to a Subscription and that all authorized persons having access to the Subscription will refrain from any disclosure, duplication or reproduction.

D. Client Requirements: Client covenants and agrees that Client’s use of the Subscriptions hereunder shall not: (a) infringe the intellectual property rights or privacy rights of any third party, including any images and information, entered into the Subscription and any third party licenses necessary for full functionality of the Subscription, (b) violate any law, statute, ordinance or regulation, including Company’s Terms of Use and Private Policy, (c) be defamatory, libelous, unlawfully threatening or harassing, (d) be obscene, or contain any viruses, Trojan horses, worms, time bombs, cancelbots, adware, malware, ransomware or other programming routines that are intended to or have the effect of damaging, detrimentally interfering with, surreptitiously intercepting or expropriating any system, data or personal information. Client shall be solely responsible for the Client’s Information. A client is responsible for compliance with all laws and regulations applicable to its business and its use of the Subscriptions and services.Company reserves the right to audit Client’s compliance with the terms and conditions of this Agreement, including this Section D, at any time; Client agrees to provide Company access to any systems, equipment and/or locations where Subscriptions or services are stored or maintained for the purpose of conducting the audit. Company will maintain all information reviewed during such audit as confidential pursuant to the other terms and conditions of this Agreement. The Audit Rights in this section shall survive termination of this Agreement for a period of one (1) year.

E. Third Party Products: Client understands and agrees that the use of certain Subscriptions by Client hereunder may require certain software licenses, hardware, internet service, and/or other products available from a third party, including, but not limited to, Microsoft Office, Microsoft Azure, and Microsoft Dynamics. A client must obtain such software licenses, hardware, internet service, and/or other products from a third party if needed to obtain the specific functionality of the Subscription desired by Client. Client acknowledges that functionality of the Subscription(s) may be limited without certain third-party software licenses, hardware, internet service, and/or other products.

F. Third Party Credentials: Client understands and agrees that certain functionalities of the Subscriptions may require administrator authorization and/or that a third-party software username and password or other credentials be provided (collectively “Third Party Credentials”) (e.g. Microsoft Office credentials). Any third-party Credentials entered by Client are used strictly for the purposes of allowing integration of the Subscriptions with the third party product, are stored only within Client’s specific Subscription, and are not collected or used for any purpose except (1) functionality of the Subscriptions; and (2) providing the Subscriptions, Support, and other Services hereunder.

SUPPORT: Company will provide reasonable quantities of telephone or online support during normal support hours and in accordance with the Subscription user manuals, if any, in force from time to time. If Client desires Support, Client must contact Company’ help desk by phone or e-mail. The company may change, limit, or discontinue Support at any time. Company may limit or discontinue support for past versions of the Subscription(s) at any time. Company will have no obligation to maintain: (a) a Subscription modified or damaged by a party other than Company or any portion of a Subscription incorporated with or into other software; (b) problems caused by Client’s negligence, abuse or misapplication, its use of the Subscription other than as specified in the Subscription user manuals, if any, or other causes beyond the control of Company; or (c) problems caused by hardware or software not supported by Company. A company will not be responsible for the cost of changes to Client’s hardware or software that may be necessary to use the Subscription due to an update or Support issue. Resolution of problems outside of Company’s Support offering may require a Statement of Work for professional services.

OWNERSHIP OF INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION

1. Intellectual Property: Company or its third-party providers owns all Company Property, and Client owns all Client Information. Neither Party will remove any copyright, trademark, or other proprietary notices of the other Party or any third party on any materials received from the other Party and each Party will reproduce all such notices on all copies of such materials.
2. Confidentiality and Client Data: Where either Party (“Discloser”) provides the other (“Recipient”) with Confidential Information, it shall be held in strict confidence and shall not be disclosed or used for any purpose other than as specifically authorized/provided in the Agreement without the prior written consent of the other. Confidential Information shall not include information: (i) which is or becomes public knowledge other than by a breach of this clause, (ii) that is required to be disclosed by any applicable law or by any recognized stock exchange, (iii) that is obtained from a third party without breach of an obligation of confidentiality and (iv) which can be shown to have been independently developed by the Parties by means other than through its access to the Confidential Information. Upon any expiration or termination of this Agreement, Recipient promptly will return to Discloser or destroy all Discloser Confidential Information that it has in its possession or control related to the Agreement.

1. By Company:
   1. Except as otherwise set forth in an Statement of Work or Order Form, Company will indemnify, defend, and hold harmless Client for any damages (and related attorney’s fees) awarded by a court in favor of any third party alleging that Subscriptions infringe or misappropriate any third party intellectual property rights, including any patent, copyright, trademark, or trade secret, as licensed under a Statement of Work (“Infringement Claim”).
   2. Company will have no liability under this Section 5(A) for any Infringement Claim arising from: (a) failure to use the Subscription or Services in accordance with the Agreement, (b) the modification of a Subscription not specifically authorized in writing by Company; (c) the combination of a Subscription or the Services with any third party software, equipment, or information not specified in the Subscription user manuals, if any; (d) the use of a version of a Subscription other than the then-current version, if the infringement would have been avoided by use of the then-current version; or (e) compliance with designs, plans, or specifications furnished by or on behalf of the Client.
   3. If Subscriptions are held or are believed by Company to infringe, Company may choose, at its sole expense, (a) to modify the Subscriptions so that they are non-infringing; (b) to replace the Subscriptions with non-infringing Subscriptions that are functionally equivalent; (c) to obtain a license for Client to continue to use the Subscriptions; or if none of (a), (b), or (c) is commercially reasonable, then (d) to terminate the Order Form for the infringing Subscriptions and refund Fees paid for such infringing Subscription(s). This Section states the entire liability of Company and Client’s sole and exclusive remedy for any infringement of third party proprietary rights of any kind.

1. By Client: Client will indemnify, defend and hold harmless Company for any damages (and related attorney’s fees) awarded by a court in favor of any third party alleging that Client Information used by Company in accordance with the terms and conditions of the Agreement infringes or misappropriates any third party intellectual property rights including any patent, copyright, trademark, or trade secret. If Client Information is held or is reasonably believed by Company to infringe, Company will cease using such Client Information and will not be liable to Client for any breach or failure to perform under the Agreement for which the Client Information was provided.

LIMITATION OF LIABILITY

1. NEITHER COMPANY, ITS THIRD PARTY PROVIDERS, NOR THE CLIENT WILL BE LIABLE FOR ANY CONSEQUENTIAL, PUNITIVE, SPECIAL, OR OTHER INDIRECT DAMAGES SUFFERED BY THE OTHER PARTY, INCLUDING: (a) ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, REVENUE, SAVINGS, OR BUSINESS; (b) LOSS OF DATA OR INFORMATION; (c) LOSS OF GOODWILL, REPUTATION, OR SIMILAR LOSSES; OR (d) BUSINESS INTERRUPTIONS ARISING OUT OF OR RELATED TO THE AGREEMENT OR ANY USE OF OR INABILITY TO USE SUBSCRIPTIONS, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES.
2. Except for each Party’s indemnification obligations under Section(s) 5(A) or 5(B), the maximum liability of Company for all claims under this Agreement, in warranty, contract, tort, or otherwise, will not exceed: in the case of Subscriptions, the Fees paid by Client in the prior 12 months for the defective Subscriptions that are the subject of the claim.
3. COMPANY HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, AND OTHER TERMS, WHETHER STATUTORY, ARISING FROM COURSE OF DEALING, OR OTHERWISE, INCLUDING WITHOUT LIMITATION TERMS AS TO QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. CLIENT ASSUMES ALL RISK IN USING THE RESULTS OF THE SUBSCRIPTION(S).

TERM AND TERMINATION

1. The initial term of a Subscription license will be set forth in the applicable Order Form. The License will automatically renew for additional terms of the same length as the initial term for the Subscription or Support unless terminated as provided in Section 7(B) of the Agreement. The term of this Agreement shall continue for the term of any Statement of Work and/or Order Form executed hereunder.
2. Each Party may terminate this Agreement in the following circumstances: (a) either Party gives written notice to the other Party of its election to terminate at least 30 days before the proposed termination date for any reason, including alleged breach of this Agreement; (b) the other Party’s assets are transferred to an assignee for the benefit of creditors, to a receiver or to a trustee in bankruptcy, a proceeding is commenced by or against the other Party for relief under bankruptcy or similar laws and such proceeding is not dismissed within 60 days, or the other Party is adjudged bankrupt. Company reserves the right to suspend access to the Subscriptions upon notice to Client in the case of a breach of this Agreement, including non-payment of Fees or misuse of the Subscriptions
3. Effect of Term or Termination: Upon termination of a Subscription under this Agreement, including termination of this Agreement, Client shall: (i) discontinue all use of Subscription(s) associated with an expired or terminated Order Form; (ii) destroy any items relating to Subscriptions and purge any Subscription data from all electronic media; and (iii) upon request from Company provide written certification to Company that Client has complied with this paragraph.

Any termination does not relieve either Party of any liability incurred prior to such termination, or for Client’s payment for unaffected Subscriptions. Upon the termination of this Agreement all Fees and Expenses owed by Client through the date of termination automatically and immediately become due and payable. Upon any expiration or other termination of an Order Form, all licenses granted under same immediately will terminate. All terms and conditions of the Agreement will continue to apply to any Order Forms that have not been so terminated.

GENERAL TERMS

1. Full Agreement: This Agreement, together with the Order Form, represent the entire agreement of the parties with respect to the subject matter hereof, and supersede any prior or current understandings, whether written or oral. If there is a conflict between these Terms and an Order Form, this Agreement will prevail.
2. Amendment and Waiver: No document, purchase order, or any handwritten or typewritten text which purports to alter or amend this Agreement will alter or amend any provision of this Agreement unless the parties both specify in writing that such terms or conditions control. Any waiver, modification or amendment of any provision of these Terms or any Order Form will be effective only if in writing and signed by duly authorized representatives of both parties.
3. The client will not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Company. Any assignment in breach of this Section is void.
4. Governing Law: This Agreement will be governed by the laws of the state of Virginia (excluding its choice of law rules). The parties consent to the exercise of exclusive jurisdiction by the state or federal courts in the State of Virginia for any claim relating to this Agreement. Any cause of action arising under this Agreement shall be asserted within the later of two (2) years of the date upon which such cause of action accrued, or the date upon which the complaining Party should have reasonably discovered the existence of such cause of action.
5. Independent Contractors: The Parties are independent contractors and nothing in this Agreement will be construed to create a partnership, joint venture or employment relationship between the Parties.
6. The terms and conditions of the Agreement (including Section(s) 4, 5, 6, 7, 8, and 9) will survive the termination of this Agreement. No term of the Agreement is intended to confer a benefit on or to be enforceable by, any person who is not a party to the Agreement.

IMPORTANT DEFINITIONS

1. “Agreement” means this Agreement, including applicable Statements of Work and Order Forms, if any.
2. “Authorized User(s)” means employees of Client who must access the Subscription solely to help Client use the Subscription for its licensed purpose. Client assumes full liability and responsibility for the acts and omissions of its Authorized Users and will take all reasonable steps to ensure that no unauthorized persons shall have access to the Subscription.
3. “Confidential Information” means: (a) any confidential or proprietary information or data of Company or Client provided to the other Party under this Agreement, including subscriptions and other intellectual property of Client or Company (b) the terms of the Agreement; and (c) any information that by its nature, Recipient knows or should know is confidential or proprietary, including business or technical information.
4. “Microsoft” means Microsoft Corporation, a multinational corporation that licenses and sells Microsoft Office, Microsoft Dynamics, Microsoft Azure, and other applications and products.
5. “Order Form” means an electronic or physical form or invoice used to order specific quantities and types of Subscriptions under this Agreement.
6. “Statement of Work” means the document executed by both Parties describing any professional services Company will perform if any.
7. “Subscription(s)” means all information or software provided by Company and/or its third-party providers to Client under an Order Form. Company reserves the right to replace or make any change to the Subscription(s) at any time.