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SaaS Subscription Agreement

Posted: January 13, 2025

 

This SaaS Agreement (“Agreement”) is entered into by and between Migreation LLC set forth below (“Company”) and the entity or person placing an order for or accessing any Services (“Customer” or “you”). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.

 

This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Company pursuant to any Company ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Form(s)”) and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement will govern Customer’s initial purchase on the date set forth in the applicable Order Form (the “Effective Date”) as well as any future purchases made by Customer that reference this Agreement. Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”).

 

Modifications to this Agreement: From time to time, Company may modify this Agreement by providing notice to Customer (including by posting such updates on the Service website). Unless otherwise specified by Company, changes become effective for Customer upon renewal of Customer’s current Subscription Term or entry into a new Order Form. Company will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email or other means. Continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version. If the Customer objects to such changes, prior to the start of the next Subscription Term, Customer may notify Company of its desire to not renew the Agreement and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the not yet started portion of the Subscription Term.

 

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.

 

SAAS SERVICES

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  1. Subject to the terms of this Agreement and during the Subscription Terms specified in an applicable Order Form, Company will use commercially reasonable efforts to provide Customer the Services in accordance with this Agreement.  As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account.

  2. If Customer receives free access or a trial or evaluation subscription to the Service (a “Trial Subscription“), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of seven (7) days or such other period granted by Company (the “Trial Period“). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Period. Company has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COMPANY WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.

 

RESTRICTIONS AND RESPONSIBILITIES

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  1. Customer will not (a) use the Services in excess of the scope of use specified in an applicable Order Form, or (b) directly or indirectly: reverse engineer the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software; (c) use the Services or any Software for timesharing or service bureau purposes; (d) remove any proprietary notices or labels; (e) probe, scan, or test the vulnerability of any system or network; (f) breach or otherwise circumvent any security or authentication measures; (g) access, tamper with, or use non-public parts of the Services, or shared areas of the Services you haven’t been invited to; (h) interfere with or disrupt any user, host, or network (i) send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”; (j) sell or attempt to sell the Services unless specifically authorized to do so; or (k) violate the law in any way, including storing, publishing or sharing material that’s fraudulent, defamatory or misleading.

  2. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services (including but not limited to content Customer uses in conjunction with the Services). Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be in violation of the foregoing.

  3. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”) Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

  4. The Service is subject to the scope of use specified in the applicable Order Form. Customer agrees that it is solely responsible for the nature and content of all materials, works, data, statements, and other visual, graphical, video, written or audible communications of any nature submitted by Customer or otherwise used through its Account. Customer agrees not to use or permit the use of the Service: (a) to communicate any message or material that is defamatory, harassing, libelous, threatening, or obscene; (b) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (c) in any manner that is likely to damage, disable, overburden, or impair the Service or interfere in any way with the use or enjoyment of the Service by others; (d) to introduce any Malware or other malicious activity in Customer’s use of the Service; (e) in violation of any export law or regulation; or (f) in any way that constitutes or encourages conduct that could constitute a criminal offense.

  5. Company may at any time suspend any use of the Service and/or remove or disable any content as to which Company reasonably and in good faith believes is in violation of this Agreement. Company agrees to provide Customer with notice of any such suspension or disablement before its implementation unless such suspension or disablement is necessary to comply with legal process, regulation, order or prevent imminent harm to the Service or any third party, in which case Company will notify Customer to the extent allowed by applicable law of such suspension or disablement as soon as reasonably practicable thereafter.

 

CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS

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  1. Either party has disclosed, or may disclose, business, technical or financial information relating to its business (“Confidential Information”). Confidential Information of Company includes non-public information regarding features, functionality and performance of the Service. Confidential Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). A party receiving confidential information (“Receiving Party”) from the party disclosing Confidential Information (“Disclosing Party”) agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use (except in performance of the Services or as otherwise permitted in this Agreement) or divulge to any third person any such Confidential Information. The obligations of confidentiality stated in this section shall survive for five (5) years from the last date Customer uses the Service.

  2. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that: (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required to be disclosed by law.

  3. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (a) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and have made a reasonable effort to obtain a protective order; or (b) to establish a party’s rights under this Agreement, including to make required court filings; or (c) in confidence, to legal counsel, consultants, accountants, banks, and financing sources, and their advisors; (d) to respond to due diligence requests in connection with an actual or proposed merger, acquisition, or similar transaction (but only with respect to the terms and conditions of this Agreement); or (e) to respond to an emergency which Company believes in the good faith should be disclosed to assist in preventing the death or serious bodily injury of any person or material damage to property.

  4. Company shall own and retain all right, title and interest in and to (a) the Services and Software, including all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services, and (c) all intellectual property rights related to any of the foregoing.

  5. Notwithstanding anything else in this Agreement, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and development of related systems and technologies.

 

FEES & PAYMENT

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  1. Customer will pay Company the fees specified in the applicable Order Form (the “Fees”). The price stated for the Service excludes all taxes and charges, unless stated otherwise. You're responsible for any taxes and for all other charges incidental to using the Services (for example, data charges and currency exchange settlements). You will pay the Fees in the currency Migreation quoted for your account.

  2. Migreation reserves the right to change the quoted currency at any time.  We'll notify you in advance, either through the Service or to the email address you have most recently provided to us, if we change the price of the Service.  If there's a specific length and price for your Service offer already in effect (for example, annual billing), that price will remain in force for that time. After the offer period ends, your use of the Service will be charged at the then-current price. If your Service is on a period basis (for example, monthly billing) with no specific length, we'll notify you of any price change at least 15 days in advance. If you don't agree to these changes, you must cancel and stop using the Service using the Account Management page on the Site, via a phone call to 1-847-231-2472 or an email to cancel@migreation.com (with cancellation confirmation from a Migreation representative) no later than seven (7) business days prior to the conclusion of your current payment term, whether monthly, yearly, or otherwise.

  3. You must be authorized to use the credit card that you enter when you create a billing account. You authorize us to charge you for the Service using your credit card and for any paid feature of the Service that you choose to sign up for or use while these Terms are in force. We may bill: (a) in advance: (b) at the time of purchase: (c) shortly after purchase; or (d) on a recurring basis for subscription Services. Also, we may charge you up to the amount you've approved, and we'll notify you in advance of the difference for recurring subscription Services. We may bill you simultaneously for more than one of your prior billing periods. We may automatically renew your Service and charge you for any renewal term. All payments are due the date the Order Form is posted on your account. All Services are prepaid for the period selected (monthly, yearly or otherwise) and are non-cancelable and non-refundable except as specifically set forth in Section 8 (IP Indemnification) and regardless of whether you use the Services during the Term. This includes accounts that are renewed.

  4. You must keep all information in your billing account current. You can access and modify your billing account information using the Account Management page on the Site. You may change your payment method at any time. If you tell us to stop using your payment method and we no longer receive payment from you for the paid Service, we may cancel that Service. Your notice to us will not affect charges we submit to your billing account before we reasonably could act on your request.

  5. Except as prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be the lesser of 1.5 percent of the unpaid amount each month or the maximum rate permitted by law. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts, including reasonable attorneys' fees and other legal fees and costs. We may suspend or cancel your Service if you fail to pay in full on time.

  6. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 30 days after the closing date on the first Order Form in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.

 

RENEWALS, TERM AND TERMINATION

 

  1. Subject to earlier termination as provided below, this Agreement is effective as of the Effective Date. It shall remain in effect unless terminated; provided that this Agreement shall automatically terminate upon the earlier of (a) the termination or expiration of all Subscription Terms or (b) termination as provided in Section 5.2 below. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for the period of the initial Subscription Term specified on the Order Form unless either party gives the other written notice of termination before the expiration of the then-current Subscription Term.  You can cancel your Subscription using the Account Management page on the Site, via a phone call to 1-847-231-2472 or by sending an email to cancel@migreation.com

  2. If you cancel, your Service and availability for electronic retrieval of Customer Data ends at the end of your current Service period or payment period.  When your current Service period or payment period ends, you will no longer be able to access your account to use the Services and your Content may be deleted.  If you fail to cancel in accordance with these Terms, we will automatically renew the Service at the then-current price and for the same subscription period and will charge your credit card on file with us commencing on the first day of the renewal of the subscription period.  You are not entitled to receive a refund or credits for the time remaining in your subscription period if you cancel. 

  3. Either party may terminate this if the other party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured following thirty (30) days written notice to the other party. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

  4. Migreation may, in its sole discretion, at any time discontinue providing or limit access to the Service, any features of the Service or Content provided on or through the Service.  You agree that Migreation may, in its sole discretion, at any time, terminate or limit your access to, or use of, the Service or any Content.  Migreation may terminate or limit your access to or use of the Service if Migreation determines, in its sole discretion, that you have infringed the copyrights of a third party.  You agree that Migreation shall not be liable to you or any third-party for any termination or limitation of your access to, or use of, the Service or any Content, including any Content that you may have shared.

 

UPGRADES, DOWNGRADES, SWITCHING YOUR BILLING CYCLE & SWITCHING ADMINISTRATORS

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  1. When you choose monthly billing, upgrades to your subscription level are available at any time by paying the price for the new subscription level (the total due will be offset by a calculation of unused time for the previous subscription level and billing period). Upgrading your subscription will reset your subscription date, and the monthly fee will then continue at the new subscription level.  Downgrading your subscription is also available, but the number of users and projects must first be aligned to subscription requirements. Downgrading your subscription will reset your subscription date, and a calculation of unused time for the previous subscription level and billing period will offset the next month’s billing total.  The monthly fee will then continue at the new subscription level. 

  2. If you opt for an annual plan, upgrades to your subscription level are available at any time by paying the price for the new subscription level (the total due will be offset by a calculation of unused time for the previous subscription level and billing period). Downgrades or switches to monthly billing are not available if you opt for annual plan within the subscription period. However, you may un-assign users who you no longer want to have access to your project or re-assign their seats if you want to change who is part your team.

  3. You can switch from monthly to annual billing at any time by paying the cost for an annual subscription.  If you choose annual billing, you can only switch to monthly billing after your subscription period ends.

  4. If you change administrative duties, the new Administrator will take over subscription management by registering a new payment source and approving the switch.  The subscription chosen by the old Administrator will be automatically cancelled and any fees related to unused time on the system for the billing period (monthly or annual) will be automatically refunded to the previous Administrator’s payment source.  The new Administrator will be automatically enrolled at the same subscription level and billing type with a new subscription commencing on the date of the administrative switch.  The new subscription will then be managed in accordance with the stipulations outlined above. 

 

WARRANTY AND DISCLAIMER

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Company warrants that the Services will be delivered in a professional manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall make reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

 

IP INDEMNIFICATION

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  1. Company will defend Customer against any third party claim that the Service infringes a patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Customer’s actions) (“Claim Against Customer“), and will indemnify Customer for the resulting costs and damages financially awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement. To the extent permitted by law, Company will have no liability to Customer under this Section 8.1 for any Claim Against Customer that arises out of: (a) any unauthorized use, reproduction, or distribution of the Service by Customer; (b) use of the Service in combination with any other software or equipment not supported by Company; or (c) any modification or alteration of the Service by anyone other than Company without the written approval of Company. In the event of a Claim Against Customer pursuant to this Section 8.1, Company may (at Company’s option and expense): (i) obtain for Customer the right to continue using the Service; (ii) modify the Service to make it non-infringing; or (iii) if subsections (i) and (ii) are not commercially viable (as determined by Company in its sole discretion), terminate this Agreement and refund Customer on a pro-rated basis any Fees pre-paid to Company for the corresponding unused period of the Service.

  2. As a condition of receiving an indemnification under this Agreement, Customer will provide Company with (i) prompt written notice of the claim; (ii) complete control over the defense and settlement of the claim (provided, that the Company will not settle any claim without the Customer’s prior written permission, which will not be unreasonably withheld, delayed or conditioned, in the event the settlement fails to unconditionally release the Customer from all liability pertaining to such claim); and (iii) such assistance in connection with the defense and settlement of the claim, at the Customer’s expense, as the Company may reasonably request.

 

LIMITATION OF LIABILITY

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NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, REVENUE, DATA OR DATA USE; OR FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

PUBLICITY

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  1. Press Releases. Neither party will issue any press release or similar publicity regarding the parties’ relationship under this Agreement without the other’s written approval.

  2. Identification of Customer. Company may identify Customer, by name or by logo, as a customer of the Services on Company’s website and other marketing materials.

  3. Recommendations and References.  Any statements made or submitted in written form, including through email, chat or text communication, that speak to the Customer’s positive experience with the Services or benefits obtained from using the Services may be shared on Company’s website and other marketing materials. 

  4. Case Study. Provided that Customer is satisfied with the Services, Company may develop a case study for public dissemination and marketing use by Company describing the benefits Customer has derived from the Services. Customer will reasonably cooperate with such a case study. Publishing shall be subject to Customer’s prior written approval, not to be unreasonably withheld.

 

MISCELLANEOUS

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  1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain effect and enforceable. Neither party shall be liable to the other for any delay or failure to perform any of the obligations set forth under this Agreement due to any act of God and/or force majeure causes beyond its reasonable control, including but not limited to hurricane, fire, flood, earthquake, terrorism or similar acts. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

  2. If you are a person and reside in or are a company and are incorporated in the United States or Canada, this Agreement shall be governed by the laws of the State of Illinois without regard to its conflict of law provisions.

  3. Dispute Resolution.  In the event of any dispute, controversy, claim or disagreement arising out of or related to this Agreement or the acts or omissions of the Parties with respect to this Agreement (each, a “Dispute”), the Parties shall resolve such Dispute as follows.  As a first step, either Party shall provide written notice to the other Party, in accordance with Section 11.2, of the initiation of this Dispute resolution process. The Parties shall use their best efforts and due diligence to reach an agreement for the resolution of such Dispute. In the event that the Parties are unable to resolve any such Dispute within thirty (30) days, such Dispute shall be submitted to a disinterested third-party mediator chosen by the Parties for nonbinding mediation prior to either Party’s instituting any arbitration procedures or formal legal action at law.  If any Dispute is not resolved to the mutual satisfaction of the Parties within ninety (90) days after delivery of the Dispute notice (or such other period as may be mutually agreed upon by the Parties in writing), then the Parties may agree to submit any Dispute to arbitration, which arbitration shall be conducted in Chicago, Illinois, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. The fees and costs of arbitration, including any costs and expenses incurred by the arbitrator in connection with the arbitration, shall be borne equally by the Parties, unless otherwise agreed to by the Parties; provided, however, that each Party shall be responsible for its own legal, expert, consultant, and related expenses.  Notwithstanding the foregoing, each party shall have the right at any time to institute an action in any court of proper jurisdiction for injunctive or other equitable relief.

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