Product Subscription Agreement
Effective May 25, 2018, all services previously governed by the End User License Agreement (EULA) and Product Subscription Agreement (PSA) will automatically transition to our new terms.
This Product Subscription Agreement ("Agreement") sets forth the terms and conditions under which Dimagi's Software Plans ("Products") are delivered to the customer ("You"). You represent that You have the authority to bind the organization You represent ("Your Organization") to these terms and conditions. If you do not have such authority, you must not accept this Agreement, and You may not use the Products. For any and all Products You purchase, any members of Your Organization who use the Products ("End Users") must agree to the terms of the End User License Agreement, available at www.commcarehq.org/eula. This Agreement was last updated on February 14, 2014. It is effective as of the date You accept this Agreement by clicking "I accept."
1. Product Terms
1.1. Software Plan. Dimagi offers several software-as-a-service plans under the names "Community," "Standard," "Pro," "Advanced," and "Enterprise," as described herein: www.commcarehq.org/pricing. You can find specific details egarding your software plan by clicking on the "Your Account" link. We reserve the right to modify, terminate or otherwise amend our offered software plan at any time.
1.2 Provision of Products. Each Product is provided on a periodic subscription basis, called a "Subscription Term." Each Subscription Term shall automatically renew until either party gives the other written notice of termination at least 30 days prior to expiration of the Subscription Term. Dimagi grants Your Organization a nonexclusive, non-transferable license to use the Product You Purchase during the Subscription Term solely for your own internal business use. You agree that Your purchase of the Product is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Dimagi regarding future functionality or features.
2.1 Dimagi's Responsibilities. Dimagi will use commercially reasonable efforts to ensure that CommCareHQ and Your Data are available with a Monthly Uptime Percentage of at least 99% during any billing cycle. Scheduled maintenance, which will occur on weekends and for no more than 8 hours per month, will not be included in this calculation. Dimagi will use commercially reasonable efforts to ensure prompt timelines, troubleshooting, explanations, clarification, or work-around on all issues reported to email@example.com within 1 business day.
"Commercially reasonable efforts" does not refer to any unavailability, suspension, or termination of the Product: (i) that results from execution of a superseding contract; (ii) that is caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems; (iii) that result from any actions or inactions of the customer or any third party.
2.2 Your Responsibilities. You will (a) be responsible for Your Users' compliance with this Agreement, and will be responsible for the accuracy, quality and legality of Your Data, which is any information of any type which You provide in connection with using the Product, including without limitation information which You input or provide Dimagi for inputting, into the Product. You will also be responsible for a) the means by which You acquired Your Data, (b) using commercially reasonable efforts to prevent unauthorized access to or use of Product, c) notifying Us promptly of any such unauthorized access or use, and (d) using Product only in accordance with this Agreement and applicable laws and government regulations.
2.3 Non-Dimagi Applications. If you install or enable Non-Dimagi Applications for use with the Product, Dimagi shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Non-Dimagi Application providers.
3.1 Dimagi. This is a subscription agreement for use of Dimagi's Product and not an agreement for sale. You acknowledge that You are obtaining only a limited right to the Product and that irrespective of any use of the words "purchase", "sale" or like terms hereunder no ownership rights are being conveyed to You under this Agreement. You agree that Dimagi retains all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the Product, and any and all underlying software (including interfaces), databases (including data models, structures, non-Customer specific data and aggregated statistical data contained therein), technology, reports and documentation (collectively, "Dimagi Technology"). Further, You acknowledge that the Dimagi's Product is offered as an on-line, hosted solution, and that you have no right to obtain a copy of the Product itself.
3.2. Your Organization. As between the parties, You shall retain all right, title and interest (including any and all intellectual property rights) in the Data as provided to Dimagi. Subject to the terms of this Agreement, You hereby grant to Dimagi a non-exclusive, worldwide, royalty-free right to copy, store, transmit, and display the Data for internal operational, public health, and research purposes as legally permitted under 45 CFR 164.514(e).
4.1 Recurring Billing. By starting your Dimagi software plan, you authorize us to charge you a periodic software plan fee at the then-current rate, and any other charges you may incur in connection with your use of the Dimagi service.
4.2 Price Changes. We reserve the right to adjust pricing for our service or any components thereof in any manner and at any time as we may determine in our sole discretion. Except as otherwise expressly provided for in this agreement, any price changes to your service will take effect following email notice to you.
4.3 Billing Cycle. The software plan fee for our service will be billed at the beginning of your Subscription Term and each calendar month thereafter unless and until you cancel your software plan (See 4.6 Cancellation). Software plan fees are fully earned upon payment. We reserve the right to change the timing of our billing, in particular, if your payment has not successfully settled.
4.4 Cancellation. You may cancel your Dimagi software plan with 30 days notice by emailing firstname.lastname@example.org. Cancellation is immediate upon Dimagi's receipt of your request.
4.5 Partial Billing. Dimagi may provide billing over partial periods of the Subscription Term at its discretion. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our members ("credits"). You are responsible for paying Dimagi up through the end of the period for which Dimagi has provided its product and/or services.
4.6 Taxes and other Payment Levies and Fees. Taxes and foreign currency exchange fees levied by any financial institution in connection with payments for Products are in addition. You agree to pay all Taxes and foreign exchange fees associated with the purchase and payment of Products hereunder or provide with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Term and Termination
5.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of any Subscription Term.
5.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party fails to cure any material breach of this Agreement (including a failure to pay fees) within 30 days after written notice.
5.3. Effect of Termination. Upon termination of this Agreement, your Product will be set to the Community Software Plan, and your license to your previous Subscription plan will be terminated. You agree to destroy all copies of the Software in your possession. Upon termination for any reason, you will have full access to your data for at least a two-week period as per the End User License Agreement, available at www.commcarehq.org/eula. Upon your request, Dimagi will delete all data collected through your application from all servers within two weeks of receiving notice.
6. Limitation of Remedies and Damages
6.1. Limitation of Remedies. Notwithstanding the Confidentiality provisions below, neither You nor Dimagi shall be liable for any loss of use, lost or inaccurate data, failure of security mechanisms, interruption of business, costs of delay or any indirect, special, incidental, reliance, or consequential damages of any kind, including lost profits, regardless of the form of action, whether in contract, tort, strict liability or otherwise, even if informed of such damages in advance.
6.2. Entire Liability. Notwithstanding any other provision of this agreement, Dimagi's and Your entire liability shall not exceed the amount actually paid to Dimagi during the duration of the Subscription Term.
7.1 Dimagi's Indemnification. Dimagi shall indemnify and hold harmless You, Your licensors, affiliates, officers, directors, employees, and agents from and against all third party claims, causes of action, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with Dimagi's Products infringing upon or violating any intellectual property rights, provided that Dimagi shall have received from You: (i) prompt written notice of such claim (but in any event notice in sufficient time for Dimagi to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation from You.
7.2 Customer Indemnification. You shall indemnify and hold harmless Dimagi, its licensors, its affiliates, officers, directors, employees, and agents from and against all claims, causes of action, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) violation by You of Your representations and warranties in this Agreement; or (ii) Your breach of any terms of this Agreement, provided that You shall have received from Dimagi: (i) prompt written notice of such claim (but in any event notice in sufficient time for You to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Dimagi.
8.1 Confidential Information. Each party agrees that all code, inventions, know- how, business, technical and financial information it obtains ("Receiving Party") from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"). Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).
9. General Provisions.
9.1 Governing Law. This Agreement is governed by the laws of Massachusetts. The parties submit to the non-exclusive jurisdiction of the state and federal courts of Massachusetts.
9.2 Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth in this Agreement or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
9.3 Severability; Entire Agreement. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
9.4. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. Dimagi Inc. may assign its rights and obligations to its ubsidiary entities Dimagi South Africa (PTY) LTD and Dimagi Software Innovations Pvt. Ltd.
9.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
9.6. Analytics Tracking. Dimagi's Web Sites use information from your devices to analyze traffic through our nalytics partners. Please see www.google.com/policies/privacy/partners for more information.