Master Subscription Agreement
This Master Subscription Agreement, effective as of (“Effective Date”) is by and between Andela, Inc. (“Andela”) a Delaware corporation with offices at 580 5th Ave Suite 820 New York, NY 10036 and (“Customer”).
Whereas, Andela provides a subscription to the Andela service (the “Service”), Customer desires to subscribe to the Service. This business relationship and the allocation of responsibilities regarding such Service are set forth in this Agreement. Therefore, the parties agree as follows:
1. Customer’s Use of the Service
1.1 Andela Obligations.
Andela shall make the Service available, in accordance with the Specifications, to the Customer during the Term pursuant to this Agreement.
1.2 Customer Obligations.
Customer may enable access of the Service for use only by Authorized Parties solely for the business purposes of Customer and its Affiliates, as per the Documentation, and not for the benefit of any third parties. Customer is responsible for all Authorized Party use of the Service and compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy, quality, and legality of all Customer Data; and (b) prevent unauthorized access to, of use of, the Service, and notify Andela promptly of any such unauthorized access or use. Customer shall not: (i) use the Service in violation of applicable Laws; (ii) in connection with the Service, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (iii) send or store Malicious Code in connection with the Service; (iv) interfere with or disrupt performance of the Service or the data contained therein; or (v) attempt to gain access to the Service or its related systems or networks in manner not set forth in the Specifications. Customer shall be liable for the acts and omissions of all Customer Affiliates relating to this Agreement.
1.3 Customer Content Licensing.
With respect to the Content, Customer hereby grants Andela the perpetual, worldwide, non-exclusive, royalty-free, and irrevocable license to reproduce, prepare “Derivative Works” of, publicly display, publicly perform, sublicense, and distribute the Content and such Derivative Works in source code or object code form, with or without modification (such grant of rights, the “Content License”). Customer hereby warrants, represents and agrees that it has the right to grant Andela the Content License. Customer represents, warrants and agrees that it will not contribute any Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party, (b) reveals any trade secret, unless Customer owns the trade secret or has the owner’s permission to reveal it, (c) infringes any intellectual property right of another or the privacy or publicity rights of another, (d) violates any law or right of any third party, or (e) is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information.
1.4 Terms of Service.
The usage of the Service is governed by Andela’s Terms of Service, which are readily available on Andela’s website at https://andela.com/terms/as such Terms of Service may be updated from time to time.
2. Fees
2.1 Invoices & Payments.
Fees for the Services will be invoiced in the relevant Order Form and will be due on receipt of the Order Form. All fees are quoted and payable in United States dollars are based on Service rights acquired and not actual usage. Customer shall provide Andela with complete and accurate billing and contact information including a valid email address for receipt of invoices.
2.2 Non-cancelable & non-refundable.
All payment obligations under any and all Order Forms are non-cancelable and all payments made are non-refundable. The license rights cannot be decreased during the Term.
2.3 Non-Payment, Penalty Fees and Suspension of Service.
If Customer’s account is more than thirty (30) days past due (except with respect to charges subject to a reasonable and good faith dispute), in addition to any other rights or remedies it may have under this Agreement or by law, Andela reserves the right to suspend the Service upon written notices, without liability to Customer, until such amounts are paid in full. If Customer’s account is more than sixty (60) days past due (except with respect to charges subject to a reasonable and good faith dispute), in addition to any other rights or remedies it may have under this Agreement or by law, Andela reserves the right to charge a late fee of the lower of [five percent (5%)] per annum or the maximum rate permitted by law.
3. Proprietary Rights
3.1 Ownership and Reservation of Rights to Andela Intellectual Property.
Andela and its licensors own all right, title, and interest in and to the Service, Specifications, Documentation, and all other Intellectual Property Rights of Andela that are implicated by this Agreement. Subject to the limited rights expressly granted hereunder, Andela reserves all rights, title and interest in and to the Service, Specifications and Documentation, including all related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
3.2 License Grant.
Andela hereby grants Customer a non-exclusive, non-transferable, right to use the Service, Specifications and Documentation solely for the internal business purposes of Customer and Affiliates and solely during the Term, subject to the terms and conditions of this Agreement and within the scope of use defined in the Order Form.
3.3 License Restrictions.
Customer shall not (i) modify, copy or create any derivative works based on the Service, Specifications or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service, Specifications or Documentation available to any third party, other than to Authorized Parties as permitted herein; (iii) reverse engineer or decompile any portion of the Service, Specifications and Documentation, including but not limited to , any software utilized by Andela in the provision of the Service, Specifications and Documentation; (iv) access the Service, Specifications or Documentation in order to build a commercially available product or service without specific approval from Andela; or (v) copy any features, functions, integrations, interfaces or graphics of the Service, Specifications or Documentation.
3.4 Confidential Information.
Customer will not use the Andela Confidential Information except as necessary for the performance or enforcement of this Agreement and will not disclose such Andela Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Andela Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms set forth in this Section 3.4. Customer will employ all reasonable steps to protect the Andela Confidential Information from unauthorized use or disclosure, including, but not limited to, all steps that it takes to protect its own information of like importance. The foregoing obligations will not restrict the Customer from disclosing the Andela Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; (ii) to its legal or financial advisors; (iii) as required under applicable securities regulations; and (iv) subject to customary restrictions, to present or future providers of venture capital and/or potential private investors in or acquirers of such party.
4. Warranties & Disclaimers
4.1 Warranties.
Each party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this agreement, shall comply with all laws applicable to it related to data privacy, international communications and the transmission of technical or personal data. Andela warrants that during the Term (i) the Service shall perform materially in accordance with the Specifications; and (ii) the functionality of the Service will not be materially decreased during the Term.
4.2 Disclaimer.
Except as expressly provided herein, including but not limited to the Warranties set forth in Section 4.1 herein, and to the maximum extent permitted by applicable law, Andela makes no warranties of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied Warranties, including any warranties of merchantability or fitness for a particular purpose with respect to the Service and/or related Documentation. Andela does not warrant that the Service will be error free or uninterrupted. The limited Warranties provided herein are the sole and exclusive Warranties provided to the Customer in connection with the provision of the service.
5. Limitation of Liability
5.1 Duty to Indemnify.
Customer will defend, indemnify and hold Andela harmless from and against any liabilities, losses, damages, judgments, fines, penalties, costs and expenses (including reasonable attorneys’ fees and court costs), as incurred, arising out of or resulting from any third-party claim, action or proceeding brought against Andela (a “Claim”) in which it is alleged that the Content or the use thereof by Andela infringe, misappropriate or violate the Intellectual Property Rights of any third party. Andela will: (a) promptly notify Customer in writing of the Claim; (b) provide Customer, at Customer’s expense, with all reasonable information and assistance to defend or settle the Claim; and (c) grant Customer with the necessary authority and control of the defense or settlement of the Claim. Customer will not settle any Claim, without Andela’s prior written consent, if the terms of the settlement would impair or limit in any way Andela’s exercise of the rights assigned and granted to Andela under this Agreement. Andela reserves the right to retain counsel, at its own expense, to participate in the defense and settlement of the Claim. In the event that Customer fails to defend or settle the Claim, without limiting Andela’s rights or remedies under this Agreement or otherwise, Andela will have the right to defend or settle the Claim, at Customer’s expense, and Customer will reimburse Andela for all reasonable costs and expenses (including reasonable attorneys’ fees and court costs) incurred by Andela in connection therewith.
5.2 Limitation of Liability.
To the maximum extent permitted by law and except with respect to (i) Customer’s payment obligations under this Agreement and any Order Form and (ii) Customer’s indemnification obligations under Section 5.1 herein, in no event shall either party’s (or Andela’s third party licensor’s) aggregate liability arising out of or related to this Agreement, whether in contract, tort or otherwise, exceed the fees for the Service actually paid by Customer during the immediately preceding twelve (12) month period (or, for a claim arising before the first anniversary of the Effective Date, the amount paid for the first twelve month period).
5.3 Exclusion of Damages.
Except with respect to Customer’s payment obligations, in no event shall either party have any liability to the other party for any indirect, special, incidental, punitive, or consequential damages, however caused, or for any lost profits, loss of use, cost or procurement of substitute goods or services, whether in contract, tort or otherwise, or inability to use the Service, any interruption, inaccuracy, error or omission, even if the party from which damages are being sought or such party’s licensors or subcontractors have previously been advised of the possibility of such loss or damages.
6. Term & Termination
6.1 Term of Agreement.
This Agreement shall commence as of the Effective Date and shall remain in effect for as long as Andela is providing the Service pursuant to any Order Form, unless earlier terminated as provided herein (the “Term”). The term for each Order Form will commence on the effective date of the Order Form and will continue for a period twelve (12) months, unless specifically stated to the contrary in the Order Form. Thereafter the term for each Order Form will renew automatically for additional twelve (12) month periods unless one party notifies the other in writing at least thirty (30) days in advance of the end of the then current Order Form term of its intention not to renew.
6.2 Termination for Cause.
Andela may terminate this agreement immediately if Customer has breached the provisions of Sections 1 or 3 herein. Either party may terminate this Agreement: (i) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event of termination of this Agreement, Customer shall immediately cease accessing and otherwise utilizing the applicable Service and Andela Confidential Information. Termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to Andela prior to the effective date of termination. Upon termination for cause by Andela, all future amounts due under all Order Forms shall be accelerated and become due and payable immediately.
6.3 Effect of Termination.
Upon the expiration or termination of this Agreement or of any Order Form: (i) the license granted to Customer in Section 3.2 herein shall terminate, (ii) Customer will promptly return to Andela or destroy all Documentation and Andela Confidential Information, and (iii) Customer will, within fifteen(15) days after receipt of Andela’s invoice, pay all unpaid fees and expenses accrued prior to the effective date of termination. The rights and obligations of the parties contained in Sections 3.1, 3.4, 5, 6.3 and 7 herein, and any other provision of this Agreement that must survive to fulfill its essential purpose, shall survive the expiration or termination of this Agreement or any Order Form.
7. General Provisions.
7.1 Relationship of the Parties.
The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
7.2 Notices.
All notices under this Agreement shall be writing or electronic mail (e-mail) and deemed given upon successful delivery. Notices to Andela should be addressed to the attention of its Legal Department. Notices to Customer shall be addressed to Customer’s signatory of this Agreement. Each party may modify its recipients of notices by providing notice pursuant to this Agreement.
7.3 Waiver and Cumulative Remedies.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Other than as expressly state herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
7.4 Force Majeure.
Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Andela or Customer employees, respectively), computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications, or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
7.5 Assignment.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms) without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement and all currently due fees are paid in full, except that Customer shall have no right to assign this Agreement to a direct competitor of Andela, as determined in Andela’s sole and reasonable discretion. Any attempt by a party to assign its right or obligations under this Agreement in breach of this Section 7.5 shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
7.6 Governing Law; Waiver of Jury Trial.
This Agreement shall be governed exclusively by the laws of the State of Delaware. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
7.7 Miscellaneous.
This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties with respect to the subject matter hereof. In the event of a conflict, the provisions of this Agreement shall take precedence over provisions of any Order Form, Exhibit or Attachment. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by the law, and the remaining provisions of this Agreement shall remain in effect. [Notwithstanding any language to the contrary therein, no terms or conditions stated in an Order Form or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.] Andela may use Customer’s name and logo in lists of customers, on marketing materials and on its website. This Agreement may be executed electronically, by facsimile and in counterparts, which taken together shall form one binding legal instrument.
8. Definitions
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either part. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement, any exhibits or attachments hereto, and any fully executed Order Form.
“Assessments” means a collection of challenges on the Service, to be sent to a Candidate or Student (as each term is defined in an Order Form) to assess their coding abilities by providing an overall score.
“Authorized Party” means each active Customer team member account on and allowing access to the Service, regardless of specific role.
“Candidate” means a candidate for employment with Customer that Customer is evaluating using the Service.
“Candidate Data” means all data provided or transmitted by a Candidate or Student to Andela, including data transmitted as part of a code assessment or information otherwise uploaded to Andela.
“Content” means any code challenges, questions, problems, or tasks, and the collection of these challenges into Assessments, that are either created by or transcribed onto the platform by Customer.
“Customer Data” means all data provided or transmitted by Customer to Andela under this Agreement or in the course of Customer’s use of the Service, including the Content.
“Documentation” means the user guide for the Service, as made available to the Customer in electronic or hardcopy format and as may be updated by Andela from time to time.
“Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related hereto.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs
“Order Form” means each separate, fully-executed ordering document under which Customer subscribes to the Service pursuant to this Agreement.
“Andela Confidential Information” means any business or technical information of Andela, including Intellectual Property Rights, that is designated by Andela as “confidential” or “proprietary” at the time of disclosure or, due to its nature or under the circumstances of its disclosure, Customer knows or has reason to know should be treated as confidential or proprietary. Andela Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by Customer; (ii) is rightfully known by Customer at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by Customer without use of the Andela Confidential Information; (iv) is rightfully received by Customer from a third party without restriction on use or disclosure; or (v) is disclosed with the prior written approval of Andela.
“Service” means Andela’s software-as-a-service applications at Andela.io, as described in the Specifications and subscribed to under an Order Form.
“Specifications” means the specifications for the Service, as made available to the Customer in electronic or hardcopy format and as may be updated by Andela from time to time.
“Student” means a student that Customer is teaching, testing, grading and/or evaluating using the Service.
Last updated on May 10th, 2023