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. Company reserves the right to refuse
registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support
services in accordance with the company’s standard practice of assisting with initial training, providing
responsiveness to bugs and improvement requests, and providing reliable product uptime.
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 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 252.227‑7014(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.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in
compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws
and regulations. The 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. Although Company has no obligation to monitor the
Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes
may be (or alleged to be) in violation of the foregoing.
2.4 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.
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 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
reasonable precautions to protect such Proprietary 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 shall not apply with respect to any information
after five (5) years following the disclosure thereof or 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.
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, 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.
4. 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 (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 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 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.
5. 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, and shall be automatically renewed for additional periods of the same duration
as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty
(30) days prior to the end of the then-current term.
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.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the
Services in a manner that 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 the 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.
7. INDEMNITY
Company shall hold Customer harmless from liability to third parties resulting from infringement by the
Service of any United States patent or any copyright or misappropriation of any trade secret, provided
Company is promptly notified of any and all threats, claims, and proceedings related thereto and 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, (ii) made in whole
or in part in accordance with Customer specifications, (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, 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; (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.
9. 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 Delaware 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.