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THIS MASTER SUBSCRIPTION AGREEMENT (“Agreement”) is made and entered into by and between StoragePug, LLC a Delaware limited liability company, having its principal office at 408 N Cedar Bluff, Suite 140, Knoxville, TN 37923 (“StoragePug”, “Company”, “us,” “we” and the like); and you and any entity you represent (the “Client”).
We offer the following Services through our software as a service platform that we host for our customers. To subscribe for a Service, you must execute an Order Form for that Service. You are only entitled to use the Services for which You have subscribed and paid and your use of the Services is subject to your compliance with all terms and conditions of the Agreement. You acknowledge and agree that we reserve the right to modify the Services (or any part thereof) from time to time and that we shall not be liable to you or to any third party for any modification to the Services.
1.1. StoragePug Marketing Websites.
We offer marketing websites with options including mobile functionality, lead tracking, Search Engine Optimization (SEO), analytics, and a custom administrative portal. The Order Form that you have executed identifies (a) the Subscription Fees payable by you to StoragePug, (b) the term of your subscription to StoragePug marketing websites and the related online marketing services you are subscribing for, and (c) the number Locations for which you may use StoragePug marketing websites and the related online marketing services you have subscribed to.
1.2. StoragePug Rental Station.
We offer a service that allows renters to execute binding rental agreements on their smartphones, tablets, or computers both online and in-store. This service requires StoragePug marketing websites and a compatible property management system.
We offer customer support free of charge as part of your subscription to our Services. Provided you have paid all fees payable by you for the Services under an applicable Order Form, we will use commercially reasonable efforts to provide, at no additional charge to you, technical support services to you and your authorized users who have subscribed to the Services. You may contact customer support by emailing us at email@example.com 24/7 or by calling 1-866-399-1604 during support hours.
Support hours are Monday through Friday, 9am to 6pm EST.
Services provided to Client by StoragePug hereunder shall be invoiced, at StoragePug’s option, either upon delivery of such Services, or at regular intervals, which intervals shall be no more frequent than weekly. Some Services may require a 50% deposit. Invoices are payable upon receipt.
3.1. Late Charge.
StoragePug may impose a late charge in the amount of 10% of any invoice not paid within fifteen (15) business days after receipt by Client, unless otherwise agreed by the parties in writing. Past due balances may accrue finance charges at the rate of 10% per annum, calculated daily, which charges will be reflected on Client’s regular statements. StoragePug reserves the right to delay or suspend the provision of any Services to Client in the event that Client has a past due balance with StoragePug.
3.2. Taxes, Etc.
Client agrees to pay all applicable sales and, subject to the provisions of Section 12 hereof, other taxes, duties, permits or similar costs associated with the provision by StoragePug of Services to Client.
Either party may terminate this Agreement effective thirty (30) days after the delivery of written notice thereof to the other party. All outstanding balances and all charges for Services ordered by Client up to the date of termination, and all charges for Services rendered by StoragePug for Client through the date of termination, shall be due and payable by Client to StoragePug upon termination
4.1. Early Termination Fee.
There is no penalty for terminating your Services early, provided you have paid all fees payable by you for the Services under an applicable Order Form.
4.2. Handling of Your Data in the Event of Termination.
You acknowledge and agree that following expiration or termination of any of your subscriptions to the Services, we may immediately deactivate all affected and related Services and that, following a reasonable period of not less than ninety (90) days, will delete your account and data. However, in the event that the Services are terminated by us, we will grant you temporary, limited access to the Services, not to exceed thirty (30) days, for the sole purpose of permitting you to retrieve your proprietary data, provided, that you have paid in full all good faith undisputed amounts owed to us. You further agree that we shall not be liable to you or to any third party for any termination of your access to the Services or deletion of your data pursuant to this Agreement.
5. Representations and Warranties.
(a) StoragePug hereby represents and warrants to Client that
(i) StoragePug is duly formed and validly existing under the laws of the State of Tennessee, and is duly qualified to transact business in the State of Tennessee;
(ii) StoragePug has all requisite power and authority to execute and deliver, and to perform all its obligations under, this Agreement;
(iii) the execution, delivery, and performance of this Agreement has been duly authorized by all necessary action and persons on the part of StoragePug and does not and will not (a) require any consent or approval that has not been obtained or (b) violate any provision of StoragePug’s organizational documents; and
(iv) this Agreement constitutes a legal, valid and binding obligation of StoragePug enforceable against StoragePug in accordance with its terms, except as limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights and general equitable principles. StoragePug further represents that there is no pending or, to StoragePug’s actual knowledge, threatened litigation against StoragePug which may affect the legality, validity or enforceability of this Agreement or any of the Services contemplated herein or StoragePug’s ability to fully perform its obligations herein.
(b) Client hereby represents and warrants to StoragePug that
(i) if an entity, Client is duly formed and validly existing under the laws of the state of its formation, and is duly qualified to transact business in the State of Tennessee;
(ii) Client has all requisite power and authority to execute and deliver, and to perform all its obligations under, this Agreement;
(iii) the execution, delivery, and performance of this Agreement has been duly authorized by all necessary action and persons on the part of Client and does not and will not (a) require any consent or approval that has not been obtained or (b) violate any provision of Client’s organizational documents, if any; and
(iv) this Agreement constitutes a legal, valid and binding obligation of Client enforceable against Client in accordance with its terms, except as limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights and general equitable principles. Client further represents that there is no pending or, to Client’s actual knowledge, threatened litigation against Client which may affect the legality, validity or enforceability of this Agreement or any of the Services contemplated herein or Client’s ability to fully perform its obligations herein.
6. Warranty Disclaimer; Limitation of Liability.
(a) Except as expressly provided herein, StoragePug makes and Client receives no warranty, express or implied, including without limitation any warranty of merchantability or fitness for a particular purpose, with respect to any products, including any hardware or software, provided to Client by StoragePug pursuant to this Agreement or otherwise, or any services rendered to or for Client pursuant to this Agreement or otherwise, any such warranties being hereby expressly disclaimed.
(b) In no event shall StoragePug be liable to Client for any indirect, special, consequential, exemplary or punitive damages or lost profits, arising out of or related to this Agreement, the Services provided hereunder or the performance or breach hereof, even if StoragePug has been advised of the possibility of such damages or lost profits. In no event shall StoragePug be liable to Client for any damages resulting from or related to any failure or defect of any third-party product provided to or sold to Client in connection with the Services or otherwise.
(c) StoragePug’s liability to Client hereunder, if any, shall in no event exceed the total of the amounts paid to StoragePug hereunder or in connection herewith by Client.
7. Third-Party Vendors.
The providing or transfer of any software or Service by StoragePug to Client in connection with this Agreement shall only be on a non-exclusive license basis, and, in any event, in accordance with the provisions of the license agreement of the applicable third party vendor and not StoragePug. In the event there are any defects in software provided by any third party vendor to StoragePug which delays or in any way affects the ability of StoragePug to provide Services pursuant hereto, or otherwise causes any detrimental consequence, Client acknowledges and agrees any remedy that it may have shall be solely against the third-party software vendor and not StoragePug. StoragePug will reasonably assist Client in resolving manufacturer defects, with the Services rendered in providing such assistance being billable pursuant to the terms hereof.
Each party recognizes that in the course of the performance of this Agreement, it may obtain confidential information or materials from the other party. The party obtaining such information shall, at all times, both during the term of this Agreement and thereafter, keep all of such confidential information in strictest confidence and trust. Each party agrees to return to the other any written, printed or other materials embodying such confidential information given to or acquired by such party in connection with this Agreement. For these purposes, the term “confidential information” shall be deemed to mean information specifically provided by one party which is designated in writing as “Confidential Information”. It shall further include any information which is customarily or ordinarily considered proprietary in nature or which constitutes a trade secret. In all events, the term “Confidential Information” shall not include any information (a) which is accessible to the party obtaining such information from sources other than the party providing such information, (b) that is in the public domain, or (c) becomes public information at any time in the future, except from an unauthorized disclosure from a party hereto. In all events, the provisions of this section shall not prevent a party obtaining confidential information from disclosing the same in connection with legal process, including subpoena. In the event that either party shall violate the terms of this Section 10, the other party shall be entitled to obtain injunctive relief to enforce this provision, it being agreed that damages alone will not constitute an adequate remedy.
9. Remedies; Arbitration.
In the event a disagreement or claim should arise out of or relate to this Agreement, including the performance hereunder, the Services, or the interpretation, breach or validity of any provision of this Agreement, the parties will attempt in good faith to consult with one another and resolve the dispute; additionally, the Client agrees to provide StoragePug with notice of any claim related to the provision of the Services hereunder and a reasonable opportunity for StoragePug to resolve any such claim. The terms of the preceding sentence shall be a condition precedent to the initiation of any legal action hereunder. Any dispute not resolved by the parties shall be submitted to arbitration under the auspices and rules of the American Arbitration Association as the sole forum to resolve any such dispute, unless the parties agree otherwise in writing; however, it is expressly agreed that StoragePug may, at its option, pursue any claim for payment under this Agreement in any court of competent jurisdiction situated in Knox County, Tennessee. Any arbitration award procured as provided herein shall be final and may be confirmed by judgment and enforced in any court having jurisdiction.
10. Independent Contractor.
The relationship between the parties is that of an independent contractor for all purposes, and the parties acknowledge and agree that neither shall be involved in the management or operations of the other and neither shall have the power or authority to control the activities of the other. Nothing contained herein shall be construed as evidencing a partnership or any other fiduciary relationship between the parties. Because of StoragePug’s status as independent contractor, no federal, state, or local income tax, unemployment tax, FICA, or payroll tax of any kind will be withheld or paid by Client on StoragePug’s behalf. StoragePug shall be responsible for obtaining any applicable workers’ compensation insurance on behalf of its own employees.
(a) Parties Bound. This Agreement shall be binding upon and inure to the benefit of the parties hereto and each of their
respective successors and assigns.
(b) Assignment; Binding Effect. Neither party may assign or transfer its rights and obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. No permitted assignment shall relieve the assigning party of any liability hereunder unless agreed to in writing by the other party. This Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns.
(c) Severability. The provisions of this Agreement are independent of and separable from each other, and no provisions shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
(d) Governing Law. This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed by and construed in accordance with the laws of the State of Tennessee.
(e) Attorneys Fees. StoragePug is entitled to recover its reasonable attorneys’ fees, costs and expenses incurred in the enforcement and collection of any amounts due by Client under this Agreement, in the enforcement of this Agreement as a result of any breach by Client, or in the successful defense of any claims asserted by Client in connection with this Agreement or the Services.
(f) Entire Agreement. This Agreement sets forth the entire understanding of the parties, and supersedes all other representations, agreements, and understandings, both oral or written, between the parties with respect to the subject matter hereof. If StoragePug renders services pursuant to any Statement of Work, Client and StoragePug hereby agree that the terms of this Agreement shall control to the extent that any terms and conditions of the Statement of Work are contrary to any provision contained in this Agreement, unless the Statement of Work specifically indicates in writing that the Statement of Work is to supersede this Agreement with respect to such terms.
(g) Survival. Any termination, cancellation or expiration of this Agreement notwithstanding, provisions that are intended to survive and continue after termination shall survive and continue.
(h) Amendment. This Agreement may only be amended or modified in writing signed by the parties hereto; this provision may not be orally modified.
(i) Waiver. Neither the failure nor any delay on the part of either party to exercise any right, remedy or power of privilege under this Agreement shall operate as a waiver thereof. Any waiver by a party of a provision in this Agreement must be in writing, signed by the waiving party. Nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege with respect to any other occurrence.
(j) Force Majeure. Except for the obligation of Client to make payments as described herein, neither party shall be in default if failure to perform any obligation under this Agreement is caused by supervening conditions beyond that party’s control, including but not limited to acts of God, war, labor strikes, slowdowns or stoppages, fires, floods, explosions, civil commotion, and other causes beyond the control or fault of the party who has delayed in performing its obligations hereunder.
(k) E-mail and Notices. You further agree that We may provide any and all notices, statements and other communications to you through either e-mail, mail, express delivery service, or delivered by a recognized commercial carrier addressed to the address last designated on the Agreement. You are responsible for providing us with any updated contact information.
(l) Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall be deemed a completed document. Any signature page delivered by facsimile shall be valid and binding upon the parties to the same extent as an original signature page. Any party who delivers a signature page by facsimile hereby agrees to later deliver an original counterpart to any party requesting the same.
(m) Publicity. We reserve the right to name you as a user of Our Services on our marketing and promotional materials unless you opt out of such disclosure on an applicable Order Form.