1. SAAS SERVICES AND SUPPORT
1.1 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.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit C.
1.3 Subject to the terms hereof, Customer will provide database and system access to the Company for processing the queries asked by users on different subject areas.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 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; or remove any proprietary notices or labels.
2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies (the “Policy”) 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, in contravention of the terms and conditions of this Agreement.
2.3 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”).
3. 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” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer shall, without limitation, include any confidential or proprietary information received by the Company whether directly from the Customer or otherwise. Confidential information includes without limitation any idea, trade secret, know how or data of any nature concerning the use, formulation or performance of either the party or its products or prospective products or services and any activities, processes, techniques, specifications, algorithms, designs, documentation or test data thereof, service, the Customer’s markets or the business of the Customer or that of their clients. (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information including employment of reasonable technical, physical and administrative safeguards designed to protect the integrity and security of the Disclosing Party’s Confidential Information, which safeguards shall include such measures as may be required by applicable law, 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 shall not apply with respect to 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 of the Disclosing Party or (e) is required to be disclosed by law. If the Proprietary Information is required to be disclosed in accordance with 3.1 (e.) then the Receiving Party shall limit such disclosure to the minimum required information to be disclosed and shall inform the Disclosing Party of any and all such requirements immediate, but no later than 2 working days from the receipt of such an order and shall render all reasonable assistance to the Disclosing Party to prevent/limit such disclosure, as far as legally agreeable. The Receiving Party shall allow the Disclosing Party to review the Receiving Party’s information security program applicable to the handling and processing of the Disclosing Party’s Confidential Information that is in the possession or control of the Receiving Party in order to enable the Disclosing Party to confirm the Receiving Party’s compliance with this Section.
3.2 The Company agrees that the Proprietary Information may be disclosed only to those of its directors, officers, employees, consultants, agents, auditors, representatives, subsidiaries, associates, third party service providers, etc. (“Representatives”) who are directly concerned with the services to be provided, have a need to know such Confidential Information for the purposes of provision of the Company’s services under this Agreement and who have agreed in writing, on such terms as are at the very least as stringent as those specified herein, to maintain the confidentiality of the information disclosed to them. The Company shall at all times be solely responsible for any breach of this Agreement and/or any of the terms herein by its Representatives.
3.3 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. 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.
3.4 Notwithstanding anything to the contrary, Company shall have the right collect and analyze aggregate, anonymous data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (but not Customer Data or data derived therefrom or any Customer Confidential Information), 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.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Software Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form, Company and Customer will work together to revise the order form to increase the number of user lincesens and agree on additional fees in the manner agreeable to both parties. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees, with maximum limit on the increase of 20% based on new features and increased usage, 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 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 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 ninety (90) days receipt of the undisputed invoice. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
4.3 All payments and fee shall be subject to Tax Deduction at Source “TDS”.
4.4 However, payment of a particular invoice, raised by the Company, in the manner as agreed above, shall not mean that the Customer agrees with the contents of the invoice raised and the Customer shall have the liberty to raise objections within 45 (Forty Five) days from the date of receipt of such invoice.
4.5 In circumstances where the Customer disputes an invoice, the Customer shall pay that invoice less the disputed amount within 90 (ninety) days, and shall make payment of the disputed amount only upon provision of substantial proof by the Company as to the accuracy of the charges levied against the Customer.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term on 1 year from the Effective date of the Agreement (“Term”), and shall immediately terminate upon expiry or early termination hereof.
5.2 Customer may at anytime during the subsistence of this Agreement terminate the same by way of 30 days prior written notice to the other Party for convenience and without cause.
5.3 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, limitations of liability and Indemnity.
6. 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 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. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION 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.
Company shall hold Customer harmless from liability to third parties resulting from any breach by Company or its agents of Section 3 of this Agreement or any infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service (at no additional cost to the Customer), or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
8. 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, except as specifically provided for in Clause 6 and 7; (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 TOTAL FEES PAID BY CUSTOMER HEREUNDER, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL NOT BE DEEMED TO LIMIT COMPANY’S INDEMNIFICATION OBLIGATIONS.
The aggregate liability of the Customer shall at all times be limited to the fees paid by the Customer to the Company for the services under this Agreement in the 12 months prior to the act that gave rise to the liability.
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 either party except with the other party’s prior written 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 Minnesota without regard to its conflict of laws provisions.
For more information, contact firstname.lastname@example.org.