SUPPORT
Master Subscription Agreement
This Master Subscription Agreement (this “Agreement”) is entered into by and between TEWAG, a Delaware corporation with offices at 169, Madison Avenue STE 11910, 10016 NY US (“TEWAG”) and the customer identified in the Order Form that references this Agreement (“Customer”). The individual accepting this Agreement on Customer’s behalf represents they have the authority to bind Customer to this Agreement. If the individual does not have such authority, such individual and Customer may not use the Services and/or any Trial Products.
Definitions
Affiliate: means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
Authorized User: means an individual who is authorized by Customer to access the Services, including any Custom Apps under Customer’s account, and who has been supplied a user identification and password. Authorized Users include, for example, Customer’s employees, consultants, contractors, agents, and third parties, whether they are building, editing or using Custom Apps through the Services.
Custom App: means any application, workflow or process that is customized, programmed, or developed by Customer using the Services.
Customer Data: means any electronic data or content that an Authorized User submits to a Custom App, for example, by querying a Database, but excluding Non-TEWAG Products and the Services.
“Database” means any database or data resource that is connected by Customer to a Custom App.Documentation: means TEWAG’s online user guides and policies, as updated from time to time, accessible via TEWAG Documentation or such successor site.
Expert Services: means ancillary services offered by TEWAG to facilitate, accelerate, or optimize Customer’s use of the Services under the Agreement. Expert Services will not include the Services.
Non-TEWAG Products: means databases, data resources, applications, and software products that interoperate with the Services and are provided by Customer or a third party.
Order Form: means an ordering document (including any online order) entered into between the parties that specifies the Services and/or any Expert Services to be provided hereunder.
Services: means TEWAG’s developer tools and platform, including all components made available by TEWAG therein, that enable Customer and its Authorized Users to build, deploy and use Custom Apps, which are made available by TEWAG to Customer either as a cloud-based service (“Cloud Services”) or as a version that Customer hosts on its own infrastructure (“Self-Hosted Services”). The “Services” exclude Expert Services, Trial Products, Non-TEWAG Products, and Customer Data.
Suggestions: means any feedback, recommendations, or suggestions shared by Customer or its Authorized Users regarding the Services, Expert Services, or Trial Products.
Trial Product: means Services, features, or functionality that TEWAG may make available to Customer to try, at its option and at no additional charge, and which may be designated by TEWAG as a beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
TEWAG Responsibilities for the Services
2.2 Service Performance and Features. TEWAG warrants that (a) the Services will perform materially in accordance with the applicable Documentation; and (b) subject to the “Non-TEWAG Products” section, TEWAG will not materially decrease the functionality of the Services during a subscription term. For any breach of an above warranty, Customer’s exclusive remedies are those described in the “Termination for Cause” section.
2.3. Protection of Customer Data. With respect to the Cloud Services, TEWAG will maintain administrative, physical, and technical safeguards for the security, confidentiality, and integrity of Customer Data at a level not materially less protective than as described in TEWAG Security Practices, as updated from time to time (“Security Practices Page”). Those safeguards will include measures for preventing unauthorized access, use, modification, deletion, and disclosure of Customer Data by TEWAG personnel. Before providing necessary access to Customer Data to a third-party service provider of TEWAG, TEWAG will ensure that the third party maintains reasonable data practices for maintaining the confidentiality and security of the Customer Data and preventing unauthorized access to or use of the Customer Data. For the avoidance of doubt, Customer bears sole responsibility for adequate security, protection, and backup of Customer Data when in Customer’s or its representatives’ or agents’ possession or control.
2.4. Data Processing Addendum. If applicable, the terms of the data processing addendum at TEWAG DPA (“DPA”) posted as of the Effective Date are hereby incorporated by reference. For the purposes of the Standard Contractual Clauses, if applicable, Customer and its applicable Affiliates are each the data exporter, and Customer's acceptance of this Agreement, and an applicable Affiliate's execution of an Order Form, shall be treated as its execution of the Standard Contractual Clauses and Appendices as detailed in the DPA.
2.5. TEWAG Personnel. TEWAG will be responsible for the performance of TEWAG’s personnel (including TEWAG’s employees and independent contractors) and their compliance with TEWAG’s obligations under this Agreement.
2.6. Compliance with Laws. TEWAG will comply with laws applicable to TEWAG in its provisioning of the Services to its customers generally.
Access and Use of the Services
Non-TEWAG Products
Expert Services
Fees and Payment
Proprietary Rights
Term and Termination
Mutual Representations and Warranties; Disclaimer
LIMITATION OF LIABILITY
Mutual Indemnification
Confidentiality
Trial Products.
General Provisions
Access and Use of the Services
3.1. Authorized User Subscriptions. Customer may use, and permit its Authorized Users to access and use, the Services in accordance with this Agreement, the Order Form, and applicable Documentation. Unless otherwise specified in an applicable Order Form, (a) Services are purchased as Authorized User subscriptions; (b) Authorized User subscriptions may be priced differently depending on levels of access and use (e.g., ‘Standard User’ that builds a Custom App versus its ‘End User’); and (c) additional Authorized User subscriptions may be added via the Services interface by Customer or by Order Form during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional Authorized User subscriptions are added. Authorized User subscriptions cannot be shared or used by more than one Authorized User, nor may Customer circumvent or bypass any fees that are charged on a per-Authorized User or per-Custom App basis, as described in the applicable Order Form.3.2. Customer Affiliates. Customer Affiliates may purchase and use the Services subject to the terms of this Agreement by executing Order Forms that incorporate this Agreement by reference, and in each such case (a) all references to “Customer” in this Agreement will be deemed to refer to such Customer Affiliate for the purposes of such Order Form; and (b) such Customer Affiliate agrees to be bound by the terms of this Agreement.
3.3. Customer Responsibilities. Customer will:
(a) be responsible for authorizing and authenticating the connection of any Databases to its Custom Apps and for ensuring that any Authorized Users with access are appropriately permissioned;
(b) be responsible for Authorized Users’ compliance with this Agreement;
(c) be responsible for the accuracy, appropriateness, and legality of Customer Data;
(d) be responsible for maintaining the confidentiality of its logins, passwords, and accounts and for all activities that occur under its accounts;
(e) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify TEWAG promptly of any such unauthorized access or use;
(f) use the Services and any Custom Apps only in accordance with applicable laws and government regulations; and
(g) if applicable, maintain a terms of use and privacy policy for Custom Apps that comply with applicable laws and regulations.3.4. Usage Restrictions. Customer may not:
(a) make the Services or Custom Apps available to, or use the Services or Custom Apps for the benefit of, anyone other than Authorized Users;
(b) upload, post, transmit, or otherwise make available any Custom Apps, or any content therein, that (i) is unlawful or tortious, or (ii) Customer does not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that infringes any patent, trademark, trade secret, copyright, or other proprietary rights;
(c) sublicense, resell, time-share, or similarly exploit the Services;
(d) upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(e) reverse engineer, modify, adapt, or hack the Services, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks;
(f) use Custom Apps to send unsolicited communications or spam, or altered, deceptive, or false source-identifying information, including "spoofing" or "phishing"; or
(g) access the Services or the Documentation to build a product or service that competes with the Services.3.5. HIPAA Compliance. Customer acknowledges that TEWAG is not a Business Associate or subcontractor (as those terms are defined in the Health Insurance Portability and Accountability Act and related amendments and regulations as updated or replaced “HIPAA”) and accordingly, Customer is solely responsible for complying with any obligations thereunder. With respect to the Cloud Services, Customer should not submit, collect, or use any “protected health information” as defined in 45 CFR §160.103.
3.6. Removal Requests. If TEWAG reasonably believes that it is required to remove any Custom Apps, Customer Data, or Non-TEWAG Products, or receives information that a Custom App, Customer Data, or a Non-TEWAG Product may violate applicable law or rights of a third party, Customer will promptly remove such Custom App or Customer Data, as the case may be, from the Services upon written notice from TEWAG (via email to Customer’s primary owner will suffice). If Customer does not take the required action in accordance with the above, TEWAG may remove the applicable Customer Data, Custom App, or disable the applicable Non-TEWAG Product.
3.7. Future Functionality. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public or private comments made by TEWAG regarding future functionality or features.
Non-Retool Products
If Customer connects, installs, or enables Non-Retool Products for use with the Services or any Custom Apps, Customer acknowledges that providers of those Non-Retool Products may have access to Customer Data in connection with the interoperation and support of such Non-Retool Products with the Services and Custom Apps. To the extent Customer authorizes the access or transmission of Customer Data through a Non-Retool Product, Retool will not be responsible for any use, disclosure, modification, or deletion of such Customer Data.Expert Services
If Customer purchases Expert Services under the applicable Order Form, the Expert Services Addendum will apply to such Expert Services.Fees and Payment
6.1. Fees. Customer will pay all fees specified in all Order Forms. Payment obligations are non-cancelable and, except as expressly set forth in this Agreement, fees paid are non-refundable. Authorized User subscription fees are based on annual periods (or prorated portions thereof, calculated on a daily basis) that begin on the subscription start date and each annual anniversary thereof. Any credits accrued during the term of an Order Form will expire upon expiration, non-renewal, or termination of the applicable Order Form. Credits have no currency, exchange, or refund value.
6.2. Invoicing and Payment. Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form. Retool will bill Customer through invoices sent via email to the billing contact designated by Customer unless otherwise specified in the Order Form. Full payment for invoices must be received within 30 days from the invoice date. If Customer does not pay fees by the due date, Retool may:
(i) charge interest at a rate of 1.5% per month or the maximum permitted by law, whichever is lower, plus collection expenses; and
(ii) suspend Services and/or Expert Services with at least 10 days’ prior notice until such amounts are paid in full.6.3. Taxes. Except for taxes based on Retool’s net income, Customer is responsible for all applicable taxes, including sales, use, excise, value-added, and similar taxes. If payments are subject to withholding taxes, Customer will reimburse Retool for such amounts.
7. Proprietary Rights
7.1. Reservation of Rights. Retool retains all rights, title, and interest in the Services, including related intellectual property rights. Customer retains all rights, title, and interest in Customer Data and Custom Apps.
7.2. License to Self-Hosted Services. For Self-Hosted Services, Retool grants a non-sublicensable, non-exclusive license to use the Self-Hosted Services in accordance with this Agreement and applicable Order Form.
7.3. Limited License to Custom Apps, Customer Data, and Non-Retool Products. For Cloud Services, Customer grants Retool and its Affiliates a limited, non-exclusive license to access and use Custom Apps, Customer Data, and Non-Retool Products:
(a) to provide, maintain, and update the Services;
(b) to address technical problems or support matters;
(c) as required by law or authorized by Customer in writing.
7.4. Suggestions. Any Suggestions shared by Customer or Authorized Users grant Retool a perpetual, sublicensable, royalty-free license to use them without obligation or compensation.
7.5. Usage Information; Service Improvements. Retool may collect Usage Information to improve Services, provided such information is anonymized or aggregated to prevent Customer identification or disclosure of Confidential Information.
8. Term and Termination
8.1. Term of Agreement. This Agreement begins on the Effective Date and continues until the expiration or termination of all Order Forms. Termination of this Agreement terminates all associated Order Forms.
8.2. Term of Services Subscriptions. Subscriptions start on the date specified in the Order Form and renew as described therein.
8.3. Termination for Cause. Either party may terminate this Agreement with 30 days’ notice if the other party materially breaches and fails to cure such breach within that time. Upon termination for cause by Customer, Retool will refund prepaid fees for the unused subscription term. Upon termination for cause by Retool, Customer must pay any outstanding fees for the remaining subscription term.
8.4. Portability and Deletion of Customer Data for Cloud Services. During the Term, Customer may export Customer Data via Cloud Services, subject to their Service plan and configuration. After termination, Customer may request a copy of Customer Data within 30 days. After this period, Retool will delete all Customer Data unless legally prohibited.
8.5. Surviving Provisions. The sections on “Fees and Payment,” “Proprietary Rights,” “Confidentiality,” “Mutual Representations and Warranties; Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” and related termination and general provisions will survive termination or expiration.
9. Mutual Representations and Warranties; Disclaimer
9.1. Representation. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND TEWAG EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT TEWAG DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. TEWAG MAKES NO WARRANTY REGARDING ANY NON-TEWAG PRODUCTS.
10. LIMITATION OF LIABILITY
10.1. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.2. Limitation of Liability. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED IN SECTION 10.3 BELOW) AND CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY.
10.3. Excluded Claims. “Excluded Claims” means: (i) Customer’s indemnification obligations under Section 11.1; (ii) TEWAG’s indemnification obligations under Section 11.2; (iii) a party’s gross negligence, fraudulent acts or willful misconduct; (iv) Customer’s infringement or misappropriation of TEWAG’s intellectual property rights; (v) a party’s breach of its confidentiality obligations under Section 12, excluding breaches related to Customer Data; or (vi) liability that cannot be limited by applicable laws.
10.4. Multi-Factor Authentication. Customer acknowledges that the Services support login using multi-factor authentication (“MFA”), which is known to materially reduce the risk of unauthorized use of or access to the Services. Accordingly, notwithstanding anything to the contrary, TEWAG will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else if any event leading to such damages, losses or liability would have been prevented by the use of MFA.
10.5. Scope of Limitation. The limitations hereunder apply with respect to all legal theories, whether in contract, tort or otherwise. The provisions of this ’Limitation of Liability’ section allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement.
11. Mutual Indemnification
11.1. Customer Indemnification. Customer shall defend TEWAG and its Affiliates, and its and their respective officers, directors, employees, and contractors, from and against a suit or proceeding by a third party alleging that (a) Customer Data, or the combination or use by Customer of Custom Apps or Non-TEWAG Products with the Services, infringes or misappropriates the intellectual property rights of a third party, or (b) Customer’s use of a Custom App violates applicable law (each, a “Claim Against TEWAG”), and shall indemnify TEWAG for any damages, attorney fees, and costs finally awarded against TEWAG as a result of, or for any amounts paid by TEWAG under a court-approved settlement of, a Claim Against TEWAG; provided, however, that Customer shall have no liability under this Section 11.1 to the extent a Claim Against TEWAG arises from TEWAG’s breach of this Agreement.
11.2. TEWAG Indemnification. TEWAG shall defend Customer and its Affiliates, and its and their respective officers, directors, employees, and contractors, from and against a suit or proceeding by a third party alleging that the use of the Services as permitted hereunder directly infringes or misappropriates a third party’s intellectual property right (a “Claim Against Customer”), and shall indemnify Customer for any damages, attorney fees, and costs finally awarded against Customer as a result of, or for any amounts paid by Customer under a court-approved settlement of, a Claim Against Customer; provided, however, that TEWAG shall have no liability under this Section 11.2 to the extent a Claim Against Customer arises from (a) Customer Data, Custom Apps, or Non-TEWAG Products; (b) Customer’s negligence, misconduct, or breach of this Agreement; or (c) the use of any version of software other than the most current release made available by TEWAG.
11.3. Indemnification Procedure. The indemnified party will provide the indemnifying party with prompt written notice of any claim, suit or demand, the right to assume the exclusive defense and control of any matter that is subject to indemnification, and cooperation with any reasonable requests assisting the indemnifying party’s defense and settlement of such matter.
11.4. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.