SaaS Services and Support
1.1 Customer may obtain from Company the right to access and use the software, platforms and other technology hosted by Company (the “Services”) and engage Company to perform related services from time to time during the term of this Agreement, pursuant to the terms of this Agreement.
1.2 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate in its sole discretion.
1.3 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit B.
Restrictions and Responsibilities
2.1 Company owns all intellectual property rights in and to the Services and Software, including but not limited to all patents, trademarks, copyrights, trade secrets, and other proprietary or intellectual property rights. Customer shall acquire no rights therein other than those limited access rights specifically conferred by this Agreement. All configurations, customizations, updates, enhancements and modifications to the Services developed by Company belong solely and exclusively to Company and shall be deemed to be included in the Services.
2.2 Customer may not sell, assign, lease sublicense, or otherwise transfer the Services to any third party, in whole or in part, without Company’s prior written consent. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to 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 (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. Moreover, Customer agrees not to (1) interfere with or disrupt the integrity or performance of the Services, Software or data contained therein; (2) attempt to gain unauthorized access to the Services, Software or its related systems or networks; or (3) copy, distribute, share, or disclose any portion of the Services or related documentation.
2.3 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.4 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with these terms and all applicable laws and regulations.
2.5 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 (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent, and ensuring that each permitted user shall only use the Services in accordance with this Agreement and otherwise complies with the terms and conditions of this Agreement. Further, Customer and its permitted users shall take all actions and steps necessary to keep the Services free of any and all viruses, malware, or other software or algorithms that may adversely impair or impact the security, integrity or performance of the Services.
Confidentiality; Proprietary Rights
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information”). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take commercially reasonable precautions to protect such Proprietary Information, but in no event using less precautions than the Receiving Party uses to protect its own confidential information and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing obligation shall terminate after five (5) years following the disclosure thereof. Proprietary Information shall not include any information that the Receiving Party can document (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 Proprietary Information or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Customer understands and agrees that Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.4 Company utilizes the services of a third-party Artificial Intelligence (AI) provider to enhance the functionality of the Services ("Third-Party AI"). This involves the transmission of Customer Data to the Third-Party AI. It is important to note that the Third-Party AI does not store or engage in training using any Customer Data or data derived from it. The Third-Party AI operates solely in real-time to assist in the provision and improvement of the Services.
Payment of Fees
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (collectively, the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days’ prior notice to Customer (which may be sent by email). If Customer in good faith believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement 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.
4.2 Customer is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information. Customer hereby agrees to pay all fees and charges to Customer’s account pursuant to the Order Form or later exhibit, schedule, or statement of work, as invoiced by Company. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
4.3 Unless Customer is deemed tax exempt, Customer shall be responsible for payment of all sales, use and excise taxes applicable to Fees and other services fees, except for taxes based upon Company’s income, including but not limited to, all sales, use or other taxes, which may be levied or assessed in connection with this Agreement. Customer shall pay such tax when due or reimburse Company as Company may request.
Term and Termination
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. 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.
5.3 If this Agreement is terminated for any reason: (a) all access rights granted hereunder shall cease on the effective date of termination; (b) Customer shall pay all Fees and any other fees for Services and all past due amounts through the date of termination and (c) Customer, it’s employees and any permitted users shall cease use of the Services on the effective date of termination. Each Receiving Party will remove the Disclosing Party’s Proprietary Information and return it to the Disclosing Party, or destroy it, together with any and all tangible materials and all copies thereof, provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Proprietary Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Proprietary Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Proprietary Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use commercially reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up.
5.4 Notwithstanding anything herein to the contrary, Company may suspend or limit Customer’s and/or any of its permitted user’s access to or use of the Services, or any portion thereof, in the event Customer fails to timely pay the Fees, or fails to timey cure a breach by Customer and/or such permitted user. Company and its licensors shall have no liability to Customer, its permitted users or any third party for any termination of this Agreement or suspension of access or use of the Services.
Warranty and Disclaimer
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for regularly 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 use 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 OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER’S EQUIPMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS - WHERE-IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.
Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) 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.
Indemnification
8.1 Each party (the “Indemnifying Party”) agrees that it will, from and after the Effective Date, pay, defend, indemnify, reimburse and hold the other party (the “Indemnified Party”), harmless for, from and against any third party loss, damage, claim, action, liability, debt, obligation or expense, including, without limitation, interest, reasonable attorneys’ fees and costs, expenses of litigation or other costs of any nature (collectively, a “Claim”) incurred or suffered or paid by, imposed upon, resulting to or threatened against an Indemnified Party and which directly or indirectly results from, arises out of or in connection with, is based upon, or exists by reason of either party’s performing or failing to perform the terms of this Agreement, provided that the Indemnifying Party shall not be required to indemnify, reimburse or hold harmless any Indemnified Party for Claims arising from an Indemnified Party’s willful or wanton behavior.
8.2 An Indemnified Party shall timely notify the Indemnifying Party of any Claim. The Indemnified Party shall afford the Indemnifying Party the opportunity to undertake the defense of such Claim through counsel retained by the Indemnifying Party at its sole cost and expense (which counsel shall be, however, reasonably satisfactory to the Indemnified Party). If the Indemnifying Party (i) fails to elect to undertake the defense of such Claim within a reasonable time after notice from the Indemnified Party, or (ii) having undertaken the defense, thereafter fails to continue to do so diligently and in good faith, then the Indemnified Party may undertake the defense of such Claim through counsel of its own choosing, and all reasonable fees and expenses in connection therewith shall be timely reimbursed to the Indemnified Party by the Indemnifying Party. If the Indemnifying Party is providing a defense for the Claim, then it shall have the right to settle any such Claim, provided that no such settlement shall be made without the prior written consent of the Indemnified Party.
8.3 The provisions of this Indemnification Section 8 shall survive the expiration or earlier termination of the Agreement.
Miscellaneous
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 in full force and effect and enforceable. 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 a 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. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request. Notwithstanding anything to the contrary, Customer grants Company the right to use Customer’s name, logo, trademarks and/or trade names in Company press releases, product brochures marketing website and social media sites (like LinkedIn and X (formerly Twitter) and financial reports indicating that Customer is a customer of Company. All other public statements or releases shall require the mutual consent of the parties.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Customer agrees that in the event of a breach or threatened breach of the scope of the access rights herein or of its obligations of confidentiality, Company will suffer irreparable harm for which it will have no adequate monetary remedy, and shall be entitled to seek injunctive and other equitable relief for such breach, in addition to and not in limitation of any other legal or equitable remedies to which it would otherwise be entitled.
EXHIBIT A
Support Terms
Company will provide Technical Support to Customer via Slack on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of Federal Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours by sending a message to their Shared Slack Channel with the Company.
Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.
EXHIBIT EXHIBIT B
Service Level Terms
This Exhibit describes the methodology pursuant to which Service Levels are implemented and Fee Reductions are calculated and paid by Company to Customer. The Service Levels are intended to measure how effectively the Services are provided to Customer. Company shall perform the Services in a manner consistent with the requirements of the Agreement, all applicable Statements of Work and the Service Levels.
The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and regularly scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from: (i) Customer’s breach of this Agreement that prevents Company from meeting the applicable Service Level, (ii) acts or omissions of Customer or its affiliates, (iii) outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Company's entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Company will credit Customer 5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. The aggregate maximum Fee Reduction payable for this Service Level in any given month is 25% of the monthly Services fees.
Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. For purposes of this Service Level Terms, “restored” means that the Services component impacted by the problem has been restored or that Company has put in place a suitable workaround, reasonably approved by Customer, that enables the Services to be provided as required under the applicable SOW and in accordance with other Service Levels. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event.
Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
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