This Ohanafy Master Subscription Agreement (“Agreement”) is made between the Ohanafy and the Client identified on the Order Form (“Client”), together referred to as the “parties” and each individually as a “party.” Specific services terms, product details and any applicable license and/or subscription terms will be set forth in the applicable Schedule(s), Order Form(s) and SOW(s), each of which become binding on the Parties and incorporated into this Agreement upon execution of an Order Form and/or SOW. Each Order Form and/or SOW is governed by and incorporates the following documents in effect as of the date of last update of such documents, collectively referred to as the “Agreement” that consists of:
In the event of a conflict, the order of precedence is as set out above in descending order of control.
Agreement Version: dated 6 June 2023.
Each party agrees that the following terms and conditions govern each Order Form and/or SOW that references this Agreement:
Ohanafy Services means, collectively, the Hosted Service, Platform, and Documentation.
Customer Materials means any content, information, materials, or data provided by or on behalf of Customer in connection with this Agreement.
Documentation means any user guide, help information, and other documentation and information regarding the Hosted Service that is delivered by Ohanafy to the Customer in electronic or another form, if any, including any updates provided by Ohanafy from time to time.
Hosted Service means the real-time website analytics service hosted by Ohanafy and provided to the Customer from time to time. The Hosted Service includes any change, improvement, extension, or other new versions thereof that are developed or otherwise made available to the Customer.
Platform means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information that are used by Ohanafy in providing the Ohanafy Services.
2.1 Order Schedules. This Agreement will be implemented through one or more written orders that reference this Agreement and contain such information as generally illustrated in the Order Schedule and Exhibit A attached hereto (Order Schedules). Any change to the terms of this Agreement within an Order Schedule will apply only to the Ohanafy Service described therein. Ohanafy may provide the Ohanafy Services directly, or indirectly using contractors or other third-party vendors or service providers. Ohanafy agrees that it shall be fully responsible for (and fully indemnify and hold Customer harmless from) the performance of Ohanafy Services for Customer by any such third-party contractors, vendors, or service providers.
By signing this agreement, the Customer agrees to be bound to the pricing terms of the Order Schedule and Exhibit A. Ohanafy has the right at all times to increase or decrease the Customer’s fee in accordance with the terms set forth in the Order Schedule and Exhibit A. In no event shall any increase or decrease in annual amounts for the Customer in accordance with the terms set forth in the Order Schedule or Exhibit A constitute a breach of this agreement by Ohanafy, but rather an increase or decrease in any fee to the Customer is a material term and one contemplated by both Customer and Ohanafy.
2.2 Hosted Service. Subject to all terms and conditions of this Agreement, Ohanafy will use commercially reasonable efforts to operate the Platform in connection with making the Hosted Service available to the Customer. Customer may use the Documentation solely in connection with the Hosted Service. Ohanafy reserves the right to modify the Hosted Service (in whole or in part) at any time, provided that Ohanafy will not materially reduce the functionality of the Ohanafy Services.
2.4 Support. Ohanafy will use commercially reasonable efforts to provide Customer with technical support and updates for the Hosted Service.
2.5 Limitations. Ohanafy will not be responsible or liable for any failure in the Ohanafy Services resulting from or attributable to (a) usage in excess of the usage for which Customer has ordered pursuant to an applicable Order Schedule, (b) Customer’s failure to use or access the Ohanafy Services in accordance with the Documentation or Ohanafy’s requirements, (c) failures in any telecommunications, network or other service or equipment that are not within Ohanafy’s reasonable control, (d) Customer's products, services, negligence, acts or omissions, (e) any force majeure or other cause beyond Ohanafy's reasonable control, (f) unauthorized access, breach of firewalls or other hacking by third parties, except to the extent such access, breach or hacking is caused by Ohanafy’s negligence or willful misconduct.
3.2 Ohanafy Services. Except for the limited rights and licenses expressly granted to Customer hereunder, no other license is granted, no other use is permitted and Ohanafy (and its licensors) shall retain all rights, title, and interests (including all intellectual property and proprietary rights) in and to the Ohanafy Services. Ohanafy shall own all rights, title, and interest to, and may use without restriction any data derived through the Customer’s use of the Ohanafy Services, provided any such data is shared in aggregated and anonymized form.
Each party understands that the other has disclosed or may disclose business, technical or financial information relating to Ohanafy’s business (hereinafter referred to as “Proprietary Information”). Proprietary Information includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). Ohanafy agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. Customer agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that Ohnafy can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Customer, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of Customer or (e) is required to be disclosed by law.
Notwithstanding anything to the contrary, Ohanafy shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Ohanafy Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Ohanafy will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Ohanafy Services and for other development, diagnostic and corrective purposes in connection with the Ohanafy Services and other Ohanafy offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
3.3 Restrictions. Except as expressly permitted in this Agreement, the Customer shall not directly or indirectly (a) use any of Ohanafy's Confidential Information to create any service, software, documentation, or data that is similar to any aspect of the Ohanafy Services, provided that the foregoing does not prohibit independent development of similar functionality by Customer or third parties, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Ohanafy Services, or the underlying ideas, algorithms or trade secrets therein, (c) encumber, sublicense, transfer, rent, lease, time-share or use the Ohanafy Services in any service bureau arrangement or otherwise for the benefit of any third party, (d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Ohanafy Services, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction or (f) permit any third party to engage in any of the foregoing proscribed acts. Any of the following acts done by Customer shall result in legal action being taken against them by Ohanafy. In that event, Ohanafy shall follow the procedures outlined in Section 10.2.
Each party agrees that the business, technical and financial information, that is designated in writing as confidential, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (d) is independently developed by the receiving party. Except as expressly and unambiguously allowed herein, the receiving party will hold in confidence and not use or disclose any Confidential Information and shall similarly bind its employees, consultants, and independent contractors. Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to the disclosing party, and receiving party will make no further use of such materials. If required by law, the receiving party may disclose Confidential Information of the disclosing party but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment, therefore. Nothing in this Agreement prevents Ohanafy from including the identity of the Customer on a customer list that is circulated with any marketing or promotional materials. In the event Ohanafy desires to use the Customer’s name in any other manner, it may only be done only with the Customer’s written consent.
5.1 Fees. The Customer agrees to pay Ohanafy all fees and expenses in the amounts and at the times specified in the applicable Order Schedule or as otherwise provided in this Agreement.
5.2 Payment Terms. Unless specified otherwise or subject to a good faith dispute, all amounts due hereunder shall be paid in full (without deduction, set-off, or counterclaim) within 30 days after the Customer’s receipt of the invoice in US dollars at Ohanafy's address or to an account specified by Ohanafy.
5.3 Late Payments. If payment is not received after 30 days from the original payment due date, then Ohanafy may begin to accrue interest fees at the rate of 10% of the outstanding balance per month at their discretion. If the delay in payment is extended beyond the 30-day threshold, then Ohanafy may turn off access to the Customer’s org. We will provide written communication warning of possible stoppages and fees in advance of all product discontinuations.
6.1 General. Each party represents and warrants that: (a) it is duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions, and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (c) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
6.2 Ohanafy. Ohanafy warrants to the Customer that (i) the Ohanafy Services will be provided in a professional and workmanlike manner; and (ii) the Ohanafy Services will perform in accordance with the Documentation in all material respects.
6.3 Disclaimers. OHANAFY DOES NOT WARRANT THAT THE OHANAFY SERVICES WILL MEET CUSTOMERS' REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, OHANAFY HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE OHANAFY SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
7.1 Customer. Customer agrees to defend, indemnify and hold harmless Ohanafy, its officers, directors, shareholders, employees, agents, affiliates, parent and subsidiary companies against any and all costs, claims, damages or expenses incurred (and reasonable attorneys’ fees in connection therewith), as well as amounts finally awarded in a settlement or by a court, arising from any third party claim or allegation relating to or arising out of any aspect of (a) Customer’s use of the Ohanafy Services in a manner not permitted by this Agreement; or (b) the Customer Materials.
7.2 Exclusions. Ohanafy shall have no liability or obligation hereunder with respect to any claim based upon (a) use of any Hosted Service in an application or environment or on a platform or with devices for which it was not designed or contemplated, (b) modifications, alterations, combinations or enhancements of the Hosted Service not created by or for Ohanafy, (c) any portion of the Hosted Service that implements Customer's requirements, (d) Customer's continuing allegedly infringing activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement or (e) any intellectual property right in which Customer or any of its affiliates has an interest.
7.3 Procedures. Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party's written consent (such consent not to be unreasonably delayed, conditioned, or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.
EXCEPT FOR ANY BREACH OF SECTION 4 (CONFIDENTIALITY) OR INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS, AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT (IN THE CASE OF OHANAFY) OR PAID AND PAYABLE BY IT (IN THE CASE OF CUSTOMER) HEREUNDER DURING THE PREVIOUS 6 MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 Term. This Agreement shall commence on the Effective Date and, unless earlier terminated as provided herein, shall continue for 1 year from the Effective Date, which term shall automatically renew for successive terms of 1-year each unless Customer notifies Ohanafy of its intent not to renew this Agreement at least 30 days prior to the end of the applicable term. Said notice shall be done in writing and sent to Ohanafy by first-class mail at the following address: 21 S. Front St., Suite 200, Wilmington, NC 28401.
In the event the Customer does not notify Ohanafy of its intent not to renew its agreement prior to 30 days of the end of the applicable term, the Customer will be bound by the terms of the agreement through the applicable term and any price increase that it is subject to in the Order Schedule and Exhibit A, which provides for an increase of up to 7% of the amount the Customer originally agreed to in the Agreement. Customer, by signing this agreement, fully agrees to pay any price increase it may be subject to in the Order Schedule and Exhibit A for any applicable term and its failure to do so will breach this agreement and subject it to all damages available to Ohanafy under the law. Ohanafy agrees to provide notice to Customer of the annual renewal of their Agreement with Ohanafy within 30 days and provide all other disclosures in accordance with applicable North Carolina law.
9.2 Termination. This Agreement may be terminated (in whole, or in respect of any Order Schedule) by a party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days (10 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party or (b) as otherwise set forth in the Order Schedule. To terminate this agreement by notice, notice shall be done in writing and sent to Ohanafy by first-class mail at the following address: 21 S. Front St., Suite 200, Wilmington, NC 28401. Any other method of notice shall be insufficient and all terms shall be binding and enforceable upon Customer.
9.3 Effects of Termination. Upon any expiration or termination of any Order Schedule or this Agreement, all corresponding rights, obligations, and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive; and (b) the provisions of Sections 3 (Proprietary Rights), 4 (Confidentiality), 5 (Payments), 6 (Limited Warranty and Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9.3 shall survive.
10.1 Entire Agreement. This Agreement (including the Order Schedules) constitutes the entire agreement and supersedes all prior negotiations, understandings, or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation, or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile/electronic copy shall have the same force and effect as execution of an original, and a facsimile/ electronic signature shall be deemed an original and valid signature. No change, consent, or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language shall be controlled in all respects.
10.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, USA, without regard to its conflicts of law provisions. The exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in North Carolina, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
10.3 Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 3 or 4, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
10.4 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence. Force Majeure shall be defined per case law in North Carolina.
10.5 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent, not to be unreasonably withheld. However, without consent, either party may assign this Agreement to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation, or otherwise); therefore, If one of the parties is purchased, acquired, or otherwise merged with another company, this Agreement would remain intact. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties hereto.
10.6 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.