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What is a Subscription Services Agreement?
A subscription services agreement is a document that specifies the terms and conditions of a business relationship between two parties. It also details the responsibilities of both parties and any limitations on liability or warranties.
This type of agreement is often used in connection with early-stage startups to provide some protection against unforeseen risks such as bankruptcy, theft, and other financial losses. A typical subscription service agreement will include provisions for: what the agreement covers products or services, how these products or services shall be provided, any limitations on liability, and termination provisions.
Subscription Services Agreement Sample
Exhibit 10.4
TRX, INC.
SOFTWARE AND SERVICES AGREEMENT
This Software and Services Agreement (the “Agreement”) is entered into as of the 1st day of January, 2009 (the “Effective Date”) between TRX, Inc (“TRX”), a Georgia corporation with its principal place of business at 2970 Clairmont Rd. NE, Suite 300, Atlanta, GA 30329 USA and BCD Travel USA LLC (“BCD” or “Client”), a Georgia limited liability company, having its principal place of business at Six Concourse Parkway NE, Suite 2400, Atlanta, GA 30328 USA. This Agreement is intended to supersede and replace all prior agreements between BCD and TRX or between BCD and Hi-Mark, LLC (a company whose assets were acquired by TRX) related to the Services hereunder (“Prior Agreements”). For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
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IN WITNESS WHEREOF, TRX and Client have caused this Services Agreement to be executed as of the Effective Date by their duly authorized representatives, and each represents and warrants that it is legally free to enter this Agreement.
TRX, INC. | BCD TRAVEL USA LLC | |
/s/ H. Shane Hammond | /s/ Leslie West | |
Signature | Signature | |
H. Shane Hammond | Leslie West | |
Name | Name | |
President & CEO | SVP | |
Title | Title | |
5 August 2010 | 6/15/2010 | |
Date | Date |
Please send 2 executed originals to the following address for countersignature: TRX, Inc. c/o Administration Department, 2970 Clairmont Rd. NE, Suite 300, Atlanta, Georgia 30329 USA tel: 404-929-6119 fax: 801-912-7431
|
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EXHIBIT A
DEFINITIONS
The terms defined in this Exhibit shall include the plural as well as the singular. Other capitalized terms used in this Agreement and not defined in this Exhibit shall have the meanings ascribed to such terms elsewhere in this Agreement. Some lower case terms that appear throughout this Agreement also appear in this Exhibit and elsewhere in this Agreement as capitalized terms. Only when such terms appear as capitalized terms shall such terms have the meanings ascribed to such capitalized terms in this Agreement.
1. “Affiliates” means any entity (i) that controls a party; (ii) that is controlled by a party; or (iii) that is under common control with an entity that also controls a party. Control includes direct or indirect control, including any subsidiary, holding company or operating division of the respective party.
2. “Authorized Users” means any person to whom Client has granted access to the Services.
3. “Confidential Information” means nonpublic proprietary information other than Trade Secrets, of value to its owner, and any data or information defined as a Trade Secret but which is determined by a court of competent jurisdiction not to be trade secret under applicable law.
4. “Client Data” means any personally identifiable information, end user profile data, information about Client activity, and summaries thereof, generated, developed or created by the interaction and use of the Services, and all other information about the user(s) of the Services that is provided directly by a Client or a Client end user, or that is generated due to Client’s use of the Services.
5. “Intellectual Property Rights” means any and all now known or hereafter known tangible and intangible worldwide patents, copyrights, moral rights, trademarks, or other intellectual property rights, whether arising by operation of law, contract, license, or otherwise, and all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in the foregoing).
6. “Marks” means all proprietary trademarks, service marks, trade names, logos, and symbols used to denote either party’s products and services.
7. “PNR” means passenger name record.
8. “Proprietary Information” means, collectively and without regard to form, any third-party information that either party has agreed to treat as confidential, and information regulated by state or federal law concerning disclosure or use, Confidential Information, and Trade Secrets.
9. “Services” means those services to be provided by TRX to Client hereunder as more completely described in Exhibit B and Exhibit D and includes all Software licensed hereunder.
10. “Software” means the software identified on Exhibit B as more completely described on Exhibit B.
11. “Trade Secrets” means information that: (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
12. A “Transaction” consists of any back office billable item or accounting line including, but not limited to, a PNR, service fee, debit memo, credit memo, unique financial transaction, or pre-paid item. See below for examples:
- | Pre-Trip: A unique PNR. |
- | Post-Trip: Any travel invoice record, such as: |
¡ | An invoice that contains records for one airline ticket, a hotel reservation, a car reservation and a service fee would represent one transaction |
¡ | An invoice that contains records for a hotel reservation and a car reservation would represent one transactions |
¡ | An invoice with an airline ticket only would represent one transaction |
¡ | An invoice with a single debit memo would represent one transaction |
- | Credit Card: Any unique financial purchase transaction, the reversal of a purchase transaction (purchase credit), financial payment transaction (credit) or memo transaction. |
- | Expense Management: Each unique expense report, not including each line item that is imported from the expense management tool to the TRAVELTRAX reporting database. |
- | HR/Corporate Hierarchy: Each unique node within the corporate hierarchy that ties to the PNR. This can be any of the following: employee id, cost center, department number, business unit, etc. |
- | Direct Vendor: Any unique transaction line item imported from the vendor feed into the TRAVELTRAX reporting database. |
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EXHIBIT B
SERVICES
TRAVELTRAX SOFTWARE
Client was granted licenses under the Prior Agreement to the following software ( “Software”) for which Client can continue to purchase the annual Software License and Maintenance by paying the applicable fee shown in Exhibit C:
Annual Software License Fee and Maintenance includes the following products:
*
TRAVELTRAX SERVICES
• | During the term of the Agreement TRX will provide general maintenance and general help desk support for all TRX TRAVELTRAX products licensed under the Agreement including without limitation, support for installation of products, installation of upgrades/updates and system tuning that may be required to accommodate changes to the system or components (“Support”). TRX will provide Client with a detailed usage report on a monthly basis due by the 10th day of the following month. Support fees *. |
• | Client requests related to custom development are considered billable as outlined in Exhibit C. Prior to commencement of any custom development, the parties will execute a Statement of Work, attached as Exhibit F, containing development specifications and cost estimates. |
• | TRX will provide BCD with monthly reports detailing the number of hours utilized by BCD in the preceding month. TRX will collaborate with BCD on establishing a mutually agreeable process and baseline for reporting purposes during the first ninety (90) days of this Agreement. |
• | For clarity, the licenses are limited to *. |
The following third party software licenses necessary for Client to utilize the Services shall be Client’s sole responsibility and at Client’s expense: *.
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EXHIBIT C
FEE SCHEDULE
TRAVELTRAX Software |
Fees | Payment Terms | ||
Annual License Fee | 2009: * 2010: * 2011: * |
* | ||
*Services* |
* | * | ||
* |
* | * |
Pricing does not include any travel or other reimbursable expenses, which are billed to the Client according to Section 6(d).
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EXHIBIT D
SERVICE LEVEL AGREEMENT AND RESPONSE PROCEDURES
1. | ERROR DEFINITIONS AND RESPONSE TIMES. |
a. A “Critical Problem” is an error resulting in Client’s inability to use the Services. TRX will respond to and use commercially reasonable efforts to correct reported Critical Problems within *.
b. A “Major Problem” is an error that materially restricts Client’s use of the Services but does not render the Services completely unusable; examples include the inability to use a function or feature, or a failure that requires ongoing intervention to maintain productive use. TRX will respond to and use commercially reasonable efforts to correct Major Problems within * or less.
c. A “Minor Problem” is an error that does not materially restrict use of the Services but causes reduced functioning of non-critical Service features. TRX will respond to and use commercially reasonable efforts to correct Minor Problems in * or less.
TRX shall respond to such problems reported by Client within the following timeframes:
* for a Critical Problem; and
Within * for Major or * for Minor Problems.
TRX will respond in writing to each report with an estimate of the time necessary to resolve the reported error, efforts made to escalate problem resolution if needed, and will advise Client in writing when remedies have been implemented. TRX shall exercise all commercially reasonable efforts to correct the problem as promptly as possible.
In addition, with respect to a Critical Problem report, TRX will: (a) assign a data analyst to identify the Critical Problem, (b) provide Client with reports every * on the status of corrections, and (c) exercise reasonable efforts on an urgent * basis to provide Client with a workaround or a fix. TRX shall use * to resolve all Critical Problems within *. TRX shall use reasonable efforts to resolve all Major Problems within * and Minor Problems within *.
2. | PROCEDURES. |
a. In the event Client encounters an error, bug or malfunction in the Services, Client’s operational representative(s) shall promptly provide written notice to TRX, describing the problem and indicating its severity.
b. TRX shall use reasonable efforts to verify the cause of the problem, and if the error is due to any act or omission of TRX, TRX’s sole obligation shall be to use commercially reasonable efforts to correct the reported problem.
c. TRX will respond to each reported error in writing with an estimate of the time necessary to resolve the error and will use commercially reasonable efforts to correct errors as promptly as possible.
d. TRX will advise Client in writing upon implementation of error corrections.
e. With respect to a Critical Problem report that is not resolved in less than *, TRX will: a) promptly assign a data analyst to investigate the error; b) provide Client with status updates every * until resolution; and c) use reasonable efforts to provide a workaround or correction on an urgent, * basis.
3. ACKNOWLEDGEMENT. Client acknowledges that some errors may not be within TRX’s ability to control or fix. TRX shall use commercially reasonable efforts to verify the cause of the problem, and if the error is due to any act or omission of TRX, TRX’s sole obligation shall be to use its reasonable efforts to correct the reported problem. TRX shall have no obligation regarding any problem that is outside of its control or otherwise not due to any act or omission of TRX.
4. SERVICE LEVELS. Any new client requests must be documented and entered in email and sent to the designated email address domain, or will be entered into a TRX provided web-based CRM tool for handling. Once the request is received by TRX, TRX will respond * after the receipt of the request with an estimate on the delivery date of such request. Any requests entered via email or CRM tool that go beyond the normal scope of the relationship and that require a lengthy analysis will be scoped and a timeframe for delivery will be delivered * or at a mutually agreed upon timeframe.
* Confidential Treatment Requested
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EXHIBIT E
TRX DATA SERVICES, INC.
DATA ACCESS AUTHORIZATION
TRX Data Services, Inc. (“TRX”) and BCD Travel USA, LLC (“Client”) are parties to the Agreement known as the Software and Services Agreement dated (the “Agreement”).
Client’s signature below authorizes TRX to access, and Data Provider to make available to TRX, Data (as defined in the Agreement and the agreement between TRX and Data Provider) to be made available by the “Data Provider” named below to TRX for the sole purpose of TRX verifying, tracking and reporting on travel-related expenses (the “Purpose”).
Ownership of the Data remains with Client. TRX will maintain both the confidentiality obligations and the security requirements mandated in the Agreement.
This Data Access Authorization, along with the Agreement, including any other amendments and schedules attached thereto, if any, represent the entire understanding and agreement between the parties, and supersedes any and all previous communications and agreements, whether oral or written, relating to the subject matter of the Agreement. No employee or agent of TRX is authorized to make any additional representations or warranties related to this Data Access Authorization or the Agreement. Any subsequent amendments and/or additions hereto are effective only if in writing and signed by both parties.
By signing below, each party represents and warrants that the individual signing on behalf of the party is authorized to legally bind that party, that the party’s obligations under this Data Access Authorization are not in conflict with any other obligation or agreement and that the consent authorized by the signature below is both valid and binding.
Client shall provide an executed copy of this Authorization to Data Provider after the execution of the Agreement. This authorization will commence on the date the last party signs below and continue until either party provides the other with seven (7) business days prior written notice as set forth in the Agreement. In the event of termination of this authorization, TRX shall provide notice to Data Provider and cease its access to Client’s Data made available by Data Provider.
Name of Data Provider:
TRX Data Services, Inc. |
BCD Travel USA LLC | |||
|
| |||
SIGNATURE |
SIGNATURE | |||
|
| |||
NAME |
NAME | |||
|
| |||
TITLE |
TITLE | |||
|
| |||
DATE |
DATE |
Please send 2 executed originals to the following address for countersignature: TRX, Inc. c/o Administration Department, 2970 Clairmont Road NE, Ste. 300, Atlanta, Georgia 30329 USA Phone: +1 404-929-6119 Fax: +1 801-912-7431
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EXHIBIT F
FORM OF STATEMENT OF WORK
This Statement of Work (“SOW”) is a part of the Software and Services Agreement between TRX Data Services, Inc. (“TRX”) and BCD Travel USA, LLC (“Client”) dated (the “Agreement”). All work to be performed under this Statement of Work is subject to the terms and conditions of the Agreement.
A. | SCOPE OF STATEMENT OF WORK (SOW) |
<insert scope of work including detailed descriptions of the work product and any deliverables/milestones>
B. | FEES, EXPENSES, AND PAYMENT TERMS |
The fee schedule for the services performed under this SOW is as follows:
Total Fee of $<insert fee> payable according to the following schedule:
<insert payment schedule>
Hourly Rate of $<insert fee> payable according to the following schedule:
<insert payment schedule>
All payments are due within thirty (30) days of date of invoice in immediately available U.S. Dollars, without withholding, deduction or offset.
TRX will invoice Client for all reasonable expenses incurred in TRX’s performance under this SOW at actual cost. Such expenses include but are not limited to: travel, lodging, and other miscellaneous expenses.
C. | CONTROLLING DOCUMENTS |
This Statement of Work is attached to and governed by all the terms and conditions of the Software and Services Agreement dated between the parties. In the event of a conflict between the Agreement and this SOW, the Agreement shall control unless the SOW specifically references the provision of the Agreement being modified.
IN WITNESS WHEREOF, Client and TRX have executed and delivered this Agreement on the dates written below. The effective date of this Statement of Work is the date the last party signs below.
Accepted and Agreed:
TRX DATA SERVICES, INC. |
BCD Travel USA LLC | |||
|
| |||
Signature |
Signature | |||
|
| |||
Name |
Name | |||
|
| |||
Title |
Title | |||
|
| |||
Date |
Date |
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Please send 2 executed originals to the following address for countersignature: TRX, Inc. c/o Administration Department, 2970 Clairmont Road NE, Ste. 300, Atlanta, Georgia 30329 USA Phone: +1 404-929-6119 Fax: +1 801-912-7431
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Reference:
Security Exchange Commission - Edgar Database, EX-10.4 5 dex104.htm SOFTWARE AND SERVICE AGREEMENT, Viewed January 28, 2022, View Source on SEC.
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