MATTEROOM General Terms and Conditions for SaaS Subscription Services
The SaaS Subscription Services Agreement (hereinafter the “Agreement”) is entered between Matteroom, LLC (hereinafter “Matteroom”), a company incorporated and existing under the law of United States; and the company subscribing to Matteroom’s Services (hereinafter the “Customer”).
Article 1. Definitions
The following terms, when used with a capital letter in the Matteroom or other services of Matteroom , SaaS Subscription Services Agreement, shall have the following meaning:
« Authorized Users »: means all employees, consultants and other individuals authorized by the Customer entitled to benefit from the Services provided by Matteroom, as listed by the Customer from time to time;
« Documentation »: means all documentation (text, video or any other form whatsoever) related to the Services that will be available online and describing in a full, clear and precise manner the functions and functionality of the Services, including all subsequent revisions;
«Effective Date »: means the date on which the Customer subscribes to Matteroom’ Services;
« Equipment »: shall have the meaning given to it in article 4.4;
« Intellectual Property Rights »: means all the intellectual property rights, among others the trademarks, copyrights, protection for computer programs (including source codes), patents, designs and models, sui generis rights to databases, and similar rights, and any filings thereon;
« SaaS Subscription Services »: means the non-exclusive and non-transferable right to use the Software worldwide and in accordance with the SaaS Subscription Services Agreement；
« Maintenance Services »: shall have the meaning given to it in article 3.6;
« Price »: means the fixed price due by the Customer;
« Services »: shall have the meaning given to it in article 2;
« Software »: means the version of the object code of any software to which the Customer has access as part of the Services, including updates or new versions.
« Support Services »: means the support services described in EXHIBIT I;
« Term »: the duration for which this SaaS Subscription Services Agreement is concluded in accordance with the chosen subscription plan.
« Third Party Products » means the products, software or services that are not manufactured or realized by Matteroom, including, but not limited to, some of the hardware components, whether integrated or not;
Article 2. Scope of the SaaS Subscription Services Agreement
The SaaS Subscription Services Agreement’s purpose is to define the terms and conditions in which Matteroom shall provide the following services to the Customer (hereinafter the « Services »).
· the SaaS Subscription Services;
· provide the Software for use by the Customer during the term of this Agreement; and
· all other services provided by Matteroom which is required for the adequate usage of the Software, which includes:
o the customization, the identification of Authorized Users and password management,
o monitoring and technical support,
o training of Authorized Users,
o backup and recovery of the Software,
o as well as the management of changes as described in other service statements.
Article 3. Description of Services
3.1. Matteroom’s SaaS Subscription Services provides a secure and reliable cloud practice management system for professionals. From intake a project, time tracking, expense management to billing management, one platform takes care the operations of a professional service firm. The platform allows user to work anytime, anywhere.
3.2. Unless otherwise provided for in this SaaS Subscription Services Agreement, Matteroom shall provide the Customer with the License for the full term of the SaaS Subscription Services Agreement.
3.3. Only Authorized Users will be entitled to benefit from the License. The number of Authorized Users covered by the License is unlimited. For more information on Matteroom’s subscription plans: https://www.matteroom.com/pricing-2/.
3.4. The Documentation provided by Matteroom must be understandable for an ordinary end user and must provide the Authorized Users with adequate instructions to become self-sufficient regarding access and use of the Services.
3.5. Matteroom undertakes to provide Support Services as described in EXHIBIT I.
3.6. Matteroom undertakes to, and the Customer undertakes to give the necessary access to Matteroom allowing the latter to, provide maintenance services. These maintenance services include bug fixing and other corrections, modifications, improvements, updates and new versions of the Software, that Matteroom deems necessary, at any time, in order to ensure that (hereinafter the « Maintenance services »):
a) the functionality of the Services, as described in the Documentation, is available to Authorized Users;
b) the functionality of the Services is in accordance with the SaaS Subscription Services Agreement; and
c) the Services work with all modern browsers such as Google Chrome 42+, Firefox 38+, Microsoft Edge 12+, etc.
Unless otherwise agreed upon, Matteroom will inform the Customer, on a case-by-case basis, and within a reasonable time, of the Maintenance Services to be performed. Unless there is no impact in the usual performance and layout to the ordinary end users and there is evident urgency in performing the services, Matteroom will have the right to immediately implement the maintenance without informing the Customer in advance. After the implementation, Matteroom will provide a summary of the Maintenance Services that it performed.
3.7. The Maintenance Services do not include preventive maintenance or repairs due to (a) software problems ; (b) modification, adjustment or repair by a person other than Matteroom or its representatives; (c) accidents, misuse or abuse of the system or a component (fire, water leakage, use of incorrect voltages or fuses, use of incompatible devices or accessories, improper or insufficient ventilation or failure to follow instructions for use) that were not caused by Matteroom; (d) displacement of the system from one entity to another ; or (e) a natural event.
3.8. The Customer may not use the Services in any other way than in accordance with his/her needs and the Documentation. In particular, the License is granted for the sole purpose of enabling the Customer to use the Services.
3.9 The Customer may in no way put the Services at the disposal of a third party and strictly prohibits the usage for any other purpose than those described in Article 3.8, in particular any adaptation, modification, translation, adjustment, distribution, decompilation, without this list being limiting.
Article 4. Usage of Services
4.1. The Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or attempt in any way to discover the source code, object code or underlying structure, ideas, know-how or the algorithms related to the Services or the Software or to the Documentation or data belonging to Matteroom.
4.2. The Customer agrees not to modify, translate or create derivative works based on the Services or the Software (except as expressly permitted by Matteroom or the SaaS Subscription Services Agreement).
4.3. The Customer guarantees that it will only use the Services in accordance with the standards imposed by Matteroom, the purpose as reflected by this SaaS Subscription Services Agreement and all applicable laws and regulations. Both Parties mutually agrees to indemnify the other Party for any and all damages, losses, liabilities, settlements and costs (including, without limitation, attorney’s fees and expenses) arising out of any claim or action from an assumed violation of the foregoing or in any other way connected to the usage of the Services by the Customer or provision of the Services by Matteroom, as the case may be.
4.4. The Customer shall be responsible for obtaining and maintaining ancillary equipment and services reasonably required to connect to, access or use the Services, including, without limitation, modems, computer, hardware, servers, software, operating systems, networks, web servers and other (collectively, the « Equipment »). The Customer shall be responsible for maintenance and security of the Equipment, the Customer account, passwords (including, without limitation, administrative and user passwords), files and any usage of the Customer account or Equipment, with or without knowledge or consent of the Customer.
4.5. If the Customer does not comply with its obligations under this SaaS Subscription Services Agreement, and such non-compliance is not remedied within a reasonable period of time upon notice, Matteroom shall be entitled to suspend its obligations without this constituting a cancellation of the SaaS Subscription Services Agreement. When the Customer has executed its obligations, Matteroom will continue to perform its contractual obligations without prejudice to modifications to the price or terms following this suspension that may have to be agreed upon between the Parties.
Article 5. Price – Payment terms
5.1. The Price will be determined in accordance with the subscription plan chosen by the Customer. The Price will be invoiced and paid by the Customer in accordance with corresponding invoices and receipts of payment via email to his own account.
5.2. Matteroom has the right to modify reasonably the Price of its subscription plans. With respect to ongoing subscription plans, the new Price will be applicable to the Customer only in case of renewal of its subscription plan.
5.3. Customer shall not have access to the Matteroom SaaS Subscription Services should it not have proceeded to the payment of the Price in accordance with Article 5.1
5.4. Matteroom, without waiving any other right or remedy and, may suspend or terminate all or part of the Services until all outstanding amounts are paid in full. Matteroom is entitled to all reasonable legal and the associated costs of recovering overdue amounts.
5.5. To be valid, any claim or refusal must be sent by email within fifteen (15) business days of receipt of the Services and only upon the Customer having become fully aware of the issue and of its respective extent and consequences. The absence of any dispute in accordance with the foregoing, implies the unconditional acceptance by the Customer of the Services provided and the corresponding invoice. The defects of a part of the delivery do not authorize the Customer to refuse the totality of the delivery, unless the incomplete delivery would not have any utility without the missing parts thereof.
Article 6. Ownership
6.1. Matteroom is and remains the owner of any property, including the Intellectual Property Rights, relating to any element of the Services implemented or developed under the SaaS Subscription Services Agreement.
6.2. Except as otherwise provided in the SaaS Subscription Services Agreement, nothing in the SaaS Subscription Services Agreement shall be construed as a waiver of any intellectual property of Matteroom, including the copyright, trademarks, know-how, patents and sui generis right on the databases.
6.4. The SaaS Subscription Services Agreement does not confer on the Customer any right of ownership over the Services. The temporary availability of the Services, including the Software, under the conditions provided for in this SaaS Subscription Services Agreement shall not be considered as the assignment of any Intellectual Property Rights for the benefit of the Customer.
6.5. The Customer shall refrain from reproducing any element of the Services, or any documentation concerning them, by any means whatsoever, in any form whatsoever and on any medium whatsoever.
6.6. The Customer acknowledges and agrees that for the elements of the Services that rely on an « open source » system the conditions of the respective licenses apply.
Article 7. Visibility
7.1. The Parties are authorized to communicate for commercial purposes on the existence of this SaaS Subscription Services Agreement without being authorized to disclose the economic conditions.
7.2. For the purposes of article 7.1, each Party is authorized to use in good faith the name and logo of the other Party and any material provided by the other Party in accordance with the specific instructions, if any, given by the other Party, without affecting his/her image or reputation and in accordance with the relevant trademark guidelines. For the avoidance of doubt, the Parties confirm that such authorization may not be construed as an assignment of intellectual property rights over the name, logo, material provided or otherwise.
Article 8. Confidentiality – Personal Data
8.1. Without prejudice to Article 8.2, each Party shall (i) keep all information it receives from the other Party confidential, and notably (ii) not disclose the confidential information of the other Party to any third party, other than employees or agents who need to know them; and (iii) not use the confidential information of the other Party for any other purpose than to exercise its rights and to fulfil his/her obligations under the SaaS Subscription Services Agreement.
8.2. Notwithstanding the foregoing, no Party shall be bound by the confidentiality set forth in Article 8.1 with respect to information that (i) would have fallen or would fall into the public domain irrespective of fault by the receiving Party, (ii) would be developed independently by the receiving Party, (iii) would be known to the receiving Party before the other Party discloses it to him, (iv) would be legitimately received from a third party not submitted to an obligation of confidentiality, or (v) should be disclosed by law or by court order (in which case they shall only be disclosed to the extent required and after having notified the Party that provided it in writing.
8.3. The Parties’ obligations regarding confidential information shall remain effective for the full term of the SaaS Subscription Services Agreement and for so long, after the term, as the information concerned shall remain confidential to the disclosing Party and, in any event, for a period of five (5) years after termination of the SaaS Subscription Services Agreement.
8.4. Each party shall return all copies of documents and material containing confidential information of the other Party, as of the termination of the SaaS Subscription Services Agreement, whatever the cause.
8.5. The Parties undertake that these provisions are respected by their personnel and by any agent or third party who might be involved in any capacity in the framework of the SaaS Subscription Services Agreement.
8.6. Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.
Article 9. Liability
9.1. Nothing in this SaaS Subscription Services Agreement and in particular in this section excludes or limits any liability that cannot be excluded under applicable law.
9.2. Except as otherwise provided, and with the exception of personal injury, Matteroom and its subcontractors (including but not limited to all suppliers of equipment and technology), directors, subsidiaries, associates, representatives, contractors and employees shall in no event be held liable in respect to any performance of the SaaS Subscription Services Agreement or any general terms thereof, any negligence or any other form of liability as follows:
a) for any error, interruption of use, loss, inaccuracy, alteration of data, or costs of acquiring the Equipment or any property, service, technology or loss of profits.
b) for indirect damage, incidental, special or consequential damages, including damages for lost profits arising out of or in connection with this SaaS Subscription Services Agreement or the Services,
c) for any aspect of the Services that is beyond the reasonable control of Matteroom, in particular those related to the Internet, network problems, viruses or malicious acts or to the Customer’s management tools.
9.3. To the extent permitted by law, the total cumulative liability of any Party to this Agreement for all claims arising out of or in connection with the SaaS Subscription Services Agreement shall not exceed the total Price paid by the Customer during the twelve (12) months prior to the damaging act.
9.4. These limitations, exclusions and disclaimer clauses apply to all claims for damages, whether based on the agreement, the guarantee, strict liability, negligence, tort or otherwise.
9.5. The above limitations of liability, however, do not apply if the damages result directly from fraud, gross negligence or wilful misconduct by Matteroom in the performance of the SaaS Subscription Services Agreement or in the event of death or bodily injury caused by its negligence, or any other liability to the extent that it cannot be conventionally excluded or limited.
Article 10. Guarantee
10.1. Matteroom shall use reasonable efforts in accordance with industry standards to ensure upkeep and maintenance of the Services in a manner that minimizes errors and interruptions of the Services and undertakes to provide the Services in a professional manner in accordance with good practice. The Services may be temporarily unavailable for maintenance in accordance with Article 3.6 subject to prior approval or notice to the Customer, as the case may be.
10.2. Except provided otherwise above or in the express warranties, and to the fullest extent permitted by law, Matteroom (including Matteroom's co-contractors and agents and their respective employees, directors and managers) on their own behalf or on behalf of its suppliers or licensors, makes no express or implied warranties with respect to the Services, including, but not limited to, any warranties (i) of merchantability, fitness for a particular use, adequacy or non-infringement; (ii) for Third Party Products;. Matteroom's Services are not fault-tolerant and are not designed or intended to be used in hazardous environments that require intrinsically safe performance, such as any application in which the failure of Services could directly result in death, personal injury or serious physical or material damage. Matteroom expressly disclaims any express or implied warranty of fitness for such activities.
Article 11. Force Majeure
11.1. In the event of a force majeure, the Parties may suspend performance of the SaaS Subscription Services Agreement and its Exhibits during the period the force majeure subsists or terminate the SaaS Subscription Services Agreement and its Exhibits if the force majeure persists for more than sixty (60) days, without any compensation being owed.
11.2. Each Party shall notify the other Party as soon as possible in writing of the particular circumstances regarding the force majeure and shall do its best to remedy the situation.
11.3. For the purposes of this SaaS Subscription Services Agreement, « force majeure » shall be deemed to be what is generally considered by the case law of New York courts in this respect, and in particular any event beyond the express will of the Parties which prevents the normal execution of the SaaS Subscription Services Agreement, including a total or partial strike within or outside the company, lock-outs, exceptional weather conditions, epidemics, blocking distribution or stocking for any reason, earthquake, fire, storm, flood, water damage, freezing of computer systems or telecommunication, theft.
Article 12. Duration of the SaaS Subscription Services Agreement and termination
12.1. The SaaS Subscription Services Agreements concluded for the Term as indicated in the subscription plan chosen by the Customer.
12.2. At the end of the Term, the SaaS Subscription Services Agreement will be tacitly renewed for successive periods which -based on the subscription plan chosen initially unless it is terminated by one of the Parties, in writing no later than one (1) month before the expiry date of the initial term or its successive renewals. For the avoidance of doubt, the Customer accepts the successive renewal of this Agreement for a period of 12 months without prejudice to the right to terminate this Agreement at any time with cause, as stipulated in article 12.4 below.
12.3. Should Customer subscribe to a Trial Period, the SaaS Subscription Services Agreement will automatically expire at the end of the Trial Period unless Customer subscribed to a subscription plan and proceeded to the payment of the due Price in accordance with Article 5.
12.4. Each Party shall have the right to terminate this SaaS Subscription Services Agreement at any time, without notice or indemnity, by giving written notice to the other Party (the " Defaulting Party") on the date following date of dispatch of the notification, in the event of a serious default by the Defaulting Party to one of its obligations under the SaaS Subscription Services Agreement, provided that that Party has failed to remedy that default within thirty (30) calendar days following the date of its formal notice by registered letter.
12.5. Matteroom may terminate the SaaS Subscription Services Agreement at any time without prior notice or indemnity, by sending a notice to the Customer in the event of a payment not in accordance with Article 5 of the SaaS Subscription Services Agreement. In such cases, the resolution shall have immediate effect on the day following the date of dispatch of Matteroom’s notice.
12.6. Early termination of the SaaS Subscription Services Agreement without cause, for any reason whatsoever, shall automatically entitle Matteroom to terminate immediately, with immediate effect, any other contract binding upon the Parties at the time of termination – including, but not limited to, any contract of development, assignment, integration and maintenance – without any costs or indemnities on its part and without prejudice to the right of Matteroom to claim any possible damages.
12.7. Save for any assistance necessary for data transfer and migration works that may be required in case Customer decides to engage and proceed with any other software provider in the future, as from the expiration of the SaaS Subscription Services Agreement or its effective termination, regardless of the cause, the Customer will no longer have access to the Software in any form whatsoever. Such assistance may subject to a Professional Services effort depends on the scope of the assistance.
12.8 In case the SaaS Subscription Services Agreement expires or is terminated, and the Customer had made the decision of changing the software provider, Matteroom hereby agrees and undertakes to cooperate fully and assist the Customer in promptly providing its best efforts and all reasonably required information or action in order to allow for such change to take place without any constraints and in a professional and smooth manner. Such assistance may subject to a Professional Services effort depends on the scope of the assistance.
Article 13. General provisions
13.1. The SaaS Subscription Services Agreement and its Exhibits contain all the obligations of the Parties, in relation to their scope, and shall supersede all previous contracts and agreements, both written and oral, in relation to this subject.
13.2. If one or more provisions of the SaaS Subscription Services Agreement and its Exhibits are declared void, unlawful or unenforceable, this shall not result in the nullity of the entire SaaS Subscription Services Agreement and its Exhibits. The Parties shall replace such provision(s) with a provision that best reflects the content and intent of the provision(s).
13.3. Any change or modification of any provision of the SaaS Subscription Services Agreement and/or its Exhibits shall not be valid, unless made in writing and signed by both Parties.
13.4. Any notice in execution or in connection with the SaaS Subscription Services Agreement and its Exhibits shall be deemed to be validly brought to the attention of the other Party if it has been sent to the address mentioned in the preamble to the SaaS Subscription Services Agreement (or any other address communicated in writing), by hand, by registered mail, by mail, by fax or by email with acknowledgment of receipt.
13.5. The Customer may not assign this SaaS Subscription Services Agreement or sublicense the Software in any way, including by merging, de-merging, or capital contribution, except as expressly authorized beforehand in writing by Matteroom.
13.6. Matteroom may resort to subcontracting. The use of subcontracting shall in no way reduce Matteroom’s liability towards the Customer under the SaaS Subscription Services Agreement, Matteroom remains the Customer’s guarantee for the proper performance of the SaaS Subscription Services Agreement.
13.7. This SaaS Subscription Services Agreement and its Exhibits are subject to United States law.
13.8. Matteroom and the Customer will attempt to resolve any dispute relating to the validity, interpretation, performance and/or termination of the SaaS Subscription Services Agreement and its Exhibits by negotiation or by using a mediator agreed by the parties, rather than by litigation. The negotiations and mediations will be treated as confidential. If the Parties are unable to reach a solution within 30 days of the notification of the dispute to the other Party, the dispute will be submitted to United States District Court of New York.