CodeGenHero Software Subscription Service (SaaS) Agreement

Last Updated January 11, 2020

This Software Subscription Service (SaaS) Agreement (the “Agreement”) sets forth the obligations and conditions between you (“Subscriber”) and Micro Support Center, Inc., an Illinois corporation (“Provider”), relating to your use of the Services defined herein. Please read this Agreement carefully. Your use of the Services is expressly conditioned on your acceptance of this Agreement.

BY CLICKING THE “I AGREE” BUTTON BELOW, AND/OR BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY TERM OF THIS AGREEMENT, DO NOT USE THE SERVICES AND EXIT IMMEDIATLEY BY CLICKING THE “I DO NOT AGREE” BUTTON BELOW.

Recitals

1. Provider is the owner of a certain proprietary suite of computer software development tools collectively known as "CodeGenHero" that is used to generate code for use in custom software applications (the “Software”).
2. Provider provides and sells subscriptions to access and use the Software via a Microsoft Visual Studio extension, CodeGenHero.com or any website which may be notified to the subscribers from time to time (the ability to access and use the Software, collectively, the “Services”).
3. Subscriber desires to allow its employees or authorized contractors (any individual employee or authorized contractor an "Authorized User") to use the Services for Subscriber’s internal business purposes, specifically to generate code for custom software to be developed by Subscriber for a customer of Subscriber's business, pursuant to the terms and conditions set forth herein ("Authorized Usage"). Subscriber’s customers and/or potential customers, their employees, officers, agents, and contractors are explicitly excluded from inclusion as Authorized Users. Use by Subscriber's customers, potential customers, and/or any non-Authorized User, or allowing use by any such person or entity, is not Authorized Usage.
4. Provider is willing to provide access to the Services for Subscriber’s Authorized Usage pursuant to the terms and conditions set forth herein.
5. Provider and Subscriber acknowledge and agree that this Agreement shall be effective and in force immediately upon the date that Subscriber clicks the “I Agree” icon below (the “Effective Date”)

   NOW THEREFORE, in consideration for the mutual promises contained herein and other good and valuable consideration, the parties agree as follows:

   1. Software Subscription.
      1. Provider grants to Subscriber and Subscriber accepts from Provider, a limited, non-exclusive, non-transferable right to access and use and permit Subscriber to access and use the Services solely for Authorized Usage.
      2. Each subscription shall be considered an authorization that grants one user (an Authorized User) the right to access and use the Services on only one machine. The designation of the Authorized User and/or the machine upon which they are authorized to use the Services may not be changed more than once in any seven-day period without the authorization of Provider. The same restrictions shall apply to multi-user subscriptions such that individual users and machines must be assigned up to a maximum number of users named on the multi-user subscription. If Provider's systems detect that multiple users are using or attempting to use an Authorized User's authentication to use the Services, Provider may terminate this Agreement at its sole discretion and without refund of any subscription fees paid for the current subscription period.
      3. Other than as part of Authorized Usage, the Services shall not be used by Subscriber, by any Authorized User, or by any third party for, or on behalf of, persons or entities that are not authorized under this Agreement. Subscriber shall use its best efforts to ensure that the Authorized Users use the Services in accordance with the terms and conditions of this Agreement. Subscriber acknowledges that its right to use the Services will be contingent upon an active web-based connection to CodeGenHero.com or some other website which may be notified to the subscribers from time to time. Subscriber agrees the Software will not be downloaded to or installed on any servers, shared virtual machines, or other computer equipment owned or controlled by Subscriber or otherwise provided to Subscriber.
      4. The use of the Services by Subscriber or any Authorized User pursuant to this Agreement shall be subject to any end user agreement, terms of use, and/or privacy policy applicable to CodeGenHero.com or any other applicable website used to access the Services. Where such may conflict with the terms of this Agreement, the terms of this Agreement shall control in relation to usage of the Services.
      5. The Services include license protection mechanisms designed to manage and protect the intellectual property rights of Provider. Subscriber shall not modify or alter said features or try to defeat said protection mechanisms. Purposeful circumvention of these license protection mechanisms shall immediately terminate this Agreement and the right of Subscriber to access the Services in any way whatsoever.
   2. Intellectual Property Rights.
      1. Subscriber acknowledges that all right, title, and interest in and to the Services and the Software, including but not limited to computer code, graphic interfaces, sequences, derivative works, organization, structure, interfaces, any documentation, data, trade names, trademarks, or other related materials (collectively, the “Provider IP”), is, and at all times shall remain, the sole and exclusive property of Provider. The Provider IP contains trade secrets and proprietary information owned by Provider and is protected by United States and foreign copyright laws (and other laws relating to intellectual property). Except the right to use the Services, as expressly provided herein, this Agreement does not grant to Subscriber any rights to, or in, patents, copyrights, trade secrets, trade names, trademarks or service marks (whether registered or unregistered) or any other rights or licenses with respect to the Services or the Software.
      2. Notwithstanding the terms of Paragraph 2(a) above, code generated by CodeGenHero shall be specifically excluded from the definition of derivative works unless said code in part and/or in whole replicates the functionality of CodeGenHero.
      3. Subscriber shall not attempt, or directly or indirectly allow any Authorized User or other third party to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit or distribute all or any portion of the Services and/or Software in any form or media or by any means.
      4. The provisions of this paragraph 2 shall survive termination of this Agreement.
   3. Subscription Fee.
      1. Subscriber shall pay to Provider the subscription fee (the “Subscription Fee”) in the amount and for the duration that Subscriber has entered and agreed to pursuant to the sign-up page for this Agreement.
      2. The Subscription Fee for the first Subscription Period (either month or year, as applicable) of the term of this Agreement shall be paid on the Effective Date. The Subscription Fee for all subsequent Subscription Periods of the term of this Agreement shall be paid to Provider on the first day of each subsequent Subscription Period, pursuant to Paragraph 3(d) below.
      3. The amount of the Subscription Fee does not include any applicable taxes. Subscriber is responsible for any and all applicable taxes, fees, bandwidth charges or other additional costs.
      4. Subscriber shall provide a valid credit card, ACH payment system information, bank account information authorized for automatic bill paying, or other acceptable method of payment to Provider and shall take all necessary steps to authorize automatic payment of the Subscription Fee. By agreeing to this Agreement, Subscriber hereby authorizes Provider to automatically charge said method of payment for all Subscription Periods during the term of this Agreement. If, for any reason, automatic payment shall be denied, then Subscriber shall pay the applicable Subscription Fee, together with a $50.00 returned payment fee, to Provider within five (5) days of notice from Provider. If this payment is not made, this Agreement shall immediately terminate.
      5. Any additional payment terms between Provider and Subscriber shall be agreed to in a writing agreed to by both parties and set forth in an invoice, billing agreement, or other written document.
   4. Accessibility/Performance. Provider shall use commercially reasonable efforts to make the Services available on a 24x7 basis (twenty-four hours per day, seven days per week) during the Term, except for: (i) scheduled system back-up or other on-going maintenance as required and scheduled in advance by Provider, or (ii) for any unforeseen cause beyond Provider's reasonable control, including but not limited to Internet service provider or communications network failures, denial of service attacks or similar attacks, or any force majeure events set forth in this Agreement. Provider will monitor performance indicators on the systems and network infrastructure (its own and that of third party suppliers) in order to gauge the overall performance of its hosting services, and will take reasonable steps to address systems and network infrastructure as required to maintain satisfactory performance of the Software. Provider further reserves the right to monitor and reasonably restrict Subscriber’s ability to use the Services if Subscriber is using excessive computing resources which are impacting the performance of the Services for other subscribers. Provider agrees to notify Subscriber in cases where it restricts such use and use good faith efforts to determine an appropriate alternative or workaround solution.
   5. Maintenance and Support. Provider shall maintain the Software and/or Services and provide all patches and fixes to the Software and/or Services at no additional cost. Provided, however, said maintenance shall not include any major releases of new versions of the Software, additional functionality, or custom programming, which Provider, at its discretion, may provide at an additional cost as otherwise agreed between the parties. No individual user support or individual maintenance shall be provided as part of this Agreement. Any support or other service provided for any issue which is not caused by Provider may, at Provider's sole discretion, be billed to Subscriber at Provider's then-current rates for such services.
   6. Term. The Term of this Agreement shall commence on the Effective Date and shall continue until terminated as provided herein. Subscriber shall elect whether the term will consist of annual or monthly periods (each a “Subscription Period”). The Agreement shall automatically renew for subsequent Subscription Periods unless either party provides written notice of its election not to renew this Agreement at least fifteen (15) days prior to end of the then-current Subscription Period or otherwise terminates this Agreement pursuant to the terms of this Agreement. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Subscriber shall immediately terminate, and the Subscriber shall cease using the Services and shall prohibit all Authorized Users from using the Services.
   7. Default. Subscriber shall be in default of this Agreement if Subscriber fails to make any payment when due and fails to cure said default within five (5) days after receipt of written notice thereof from Provider. In addition to the monetary breach described in the previous sentence, either party will be in default of this Agreement if the party is in material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice thereof from the non-breaching party. If a party is in default, the non breaching party may terminate this Agreement or seek any other remedies available at law or in equity, except as otherwise provided in this Agreement. In the event Subscriber breaches or attempts to breach any of the provisions of this Agreement, Provider shall have the right, in addition to such other remedies that may be available, to injunctive relief enjoining such breach or attempt to breach, Subscriber hereby acknowledging the inadequacy of any remedy at law.
   8. No Assignment or Amendment. The rights and obligations of this Agreement attributable to Authorized User are personal rights granted to the Authorized User only. None of the rights or obligations granted under this Agreement are transferrable to any other person or legal entity. The User may not make the CGH Software available for use by one or more third parties. User may not amend this Agreement without prior written consent of Vendor. Licensee may assign this Agreement to succeeding parties in the case of a merger, acquisition or change of control so long as in doing so, Vendor is notified in writing via email to Admin@msctek.com within ninety (90) days of the closure of such transaction. If User merges into or with a direct competitor of Vendor, as determined in Vendor’s sole discretion, then this Agreement will automatically terminate as of the effective date of such merger. Vendor may assign its rights and obligation under this Agreement without consent of User.
   9. Confidentiality.
      1. In addition to, and in no way limiting the requirements relating to the Provider IP as set forth in Section 2 of this Agreement, Subscriber shall use reasonable efforts (but in no case less than the efforts used to protects its own proprietary information) to protect all proprietary, confidential, and/or non-public information pertaining to or in any way connected to the Software, the Services, the Provider's financial, professional and/or other business affairs, and this Agreement (the "Confidential Information").
      2. Subscriber shall not disclose or publicize the Confidential Information without the Provider’s prior written consent.
      3. Subscriber shall use reasonable efforts (but in no case less than the efforts used to protects its own proprietary information) not to disclose and not to use the Confidential Information for their own benefit or for the benefit of any other person, third-party, firm or corporation in a manner inconsistent with the terms and reasonable purposes of this Agreement.
      4. The requirements of confidentiality contained herein shall expire five (5) years from the date of the termination of this Agreement. The previous sentence notwithstanding, any information Provider may obtain regarding the Provider IP shall be held confidential in perpetuity.
      5. The restrictions on disclosure shall not apply to information which was: (i) generally available to the public at the time of disclosure, or later available to the public other than through fault of the Subscriber; (ii) already known to the Subscriber prior to disclosure pursuant to this Agreement; (iii) obtained at any time lawfully from a third-party under circumstances permitting its use or disclosure to others; or (iv) required by law or court order to be disclosed.
   10. Limited Warranty. Provider warrants that it has the power and authority to grant the subscription for the Services granted to Subscriber hereunder and that to the best of its knowledge and belief, provision of the Services does not violate the rights of any third party. EXCEPT FOR THE WARRANTY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND PROVIDER DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABLITY OR FITNESS FOR A PARTICULAR PURPOSE.
   11. Limitation of Remedy and Liability. Subscriber represents that it accepts sole and complete responsibility for: (a) the selection of the Services to achieve Subscriber's intended results; (b) use of the Services; (c) the results obtained from use of the Services; and (d) the terms or implementation of any agreement(s) between Subscriber and any third party. Provider does not warrant that the Subscriber’s use of the Services will be uninterrupted or error-free. Subscriber shall defend Provider from any demand or claim, and indemnify and hold Provider harmless from any and all losses, costs, expenses, or damages, including reasonable attorneys’ fees, directly or indirectly resulting from Subscriber’s use of the Services, an Authorized User’s use of the Services, the use of the Services to provide goods or services to any third party, and/or any agreement between the Subscriber and any third party based on or in any way related to the Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS REVENUE AND/OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED UPON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In any event, under no circumstances other than gross negligence or willful unlawful act upon the part of Provider shall Provider be liable for any loss, costs, expenses, or damages to Subscriber in an amount exceeding the Subscription Fee actually paid to Provider by Subscriber for the previous twelve (12) months.
   12. Miscellaneous.
       1. Notice and Demands. Notice, demand, or other communication mandated to be given by this Agreement by either party to the other shall be sufficiently given or delivered if it is sent by registered or certified mail, postage prepaid, return receipt requested or delivered personally. Unless Provider is otherwise notified in writing, the Subscriber’s address for notice purposes shall be Subscriber’s address provided as part of Subscriber’s billing information.
       2. Governing Law; Forum Selection. This Agreement shall be governed exclusively by the laws of the State of Illinois, without regard to its conflicts of laws principles. Any action under or concerning this Agreement shall be brought exclusively in the Circuit Court of Kane County, Illinois or the Federal District Court having jurisdiction over Kane County, Illinois. The parties irrevocably agree and consent that said forum is convenient and has jurisdiction to hear and decide any such action.
       3. Compliance with Laws. Subscriber shall use the Services in accordance with any and all applicable local, state, and federal laws.
       4. Headings. The paragraph headings in this Agreement are for convenience only and they form no part of the Agreement and shall not affect the interpretation thereof.
       5. Publicity Rights. Subscriber and/or Authorized User hereby grant Provider the right to include Subscriber and/or the Authorized Users as a customer in promotional material related to Software. Subscriber can deny Provider this right by submitting a written request via email to Admin@MSCTek.com, requesting to be excluded from said promotional material. Confirmation of such denial (via reply email) must be received prior to purchasing for this exclusion to be effective. Requests made after purchase will be granted 30 days for approval and another 30 days to update any offending promotional material. Offending printed promotional material printed or prepared prior to the request, may still be used at the Vendor’s discretion.
       6. Privacy of User Data. While using Software, Authorized Users decide where to save code projects and code generated by Software (“User Data”). Software covered by this Agreement does not “call home” to transmit said User Data to Provider machines. Software does, however, “call home” to validate and authorize Subscriber’s use of Software as well as collect usage metrics, navigation analytics, crash reporting and error reporting. Provider will use reasonable efforts to ensure the security of any User Data which may incidentally be transmitted as part of the collection of such information.
       7. Severability. If any provision of this Agreement shall be held illegal, void, or unenforceable, the remaining portions shall remain in full force and effect.
       8. No Waiver. The delay or failure of either party to exercise any right under this Agreement or to take action against the other party in the event of any breach of this Agreement shall not constitute a waiver of such right, or any other right, or of such breach, or any future breaches, under this Agreement.
       9. Assignment. Subscriber shall not assign or transfer this Agreement. In the event of the sale or transfer of Subscriber's business or substantially all the assets thereof, Subscriber shall notify Provider and Provider, unless it provides notice of reasonable refusal, shall transfer the subscription to the purchasing person or entity.
       10. No Partnership or Agency. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as an agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise bind the other in any way.
       11. Force Majeure. Provider will not be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the Provider's reasonable control, including but not limited to fire, flood, storm, act of God, war, malicious damage, failure of a utility service or transport or telecommunications network.
       12. Complete Agreement. This Agreement constitutes the entire agreement between the parties with respect to the Services, and supersedes any and all prior or contemporaneous understandings or agreements whether written or oral. No amendment or modification of this Agreement will be binding unless reduced to a writing signed by duly authorized representatives of the parties and such writing makes specific reference to this Agreement and its intention as an amendment hereto.

BY USING THIS SITE, AND/OR BY USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTOOD IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT THIS AGREEMENT SHALL BE SUPERIOR TO, AND SUPERCEDE ANY CONFLICTING OR INCONSISTENT TERMS CONTAINED IN ANY PURCHASE ORDERS, OTHER DOCUMENTS PROVIDED TO THE COMPANY BY YOU, OTHER DOCUMENTS PROVIDED TO YOU BY THE COMPANY, OR AGREEMENTS PREVIOUSLY ENTERED INTO BY THE PARTIES. IF YOU DO NOT AGREE TO THE TERM OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE APPLICATION AND/OR THE DATA, UNINSTALL ANY AND ALL INSTALLATIONS OF THE SOFTWARE, AND EXIT NOW BY CLICKING ON THE “I DO NOT AGREE” BUTTON BELOW.