1. Terms of Service
These Terms of Use are a legal agreement between you, and Serviceaide, Inc., and its affiliates, including Sunview Software, Inc., and Wendia North America, LLC (collectively referred to as the “Company,” “we,” “us,” or “our”). The following terms and conditions (“Terms of Use”) govern your access to and use of the Company’s websites and related online services (“Site”), including any content, functionality, and services offered on the Site.
Please read the Terms of Use carefully before using the Site. Your access to, and use of, the Site indicates your agreement to be bound by the Terms of Use. If you do not agree to these Terms of Use, do not access or use the Site.
As a user of the Site and its services, you agree to be bound and abide by the Terms of Use that are explained herein. We, at any time, may terminate your access to the Site in whole or in part, or cancel or refuse to honor any order, without notice, for any reason, including but not limited to any fraudulent or abusive conduct that we believe may violate any applicable law, or is harmful to the interests of another, any illegal or unauthorized use of the Site or any violation of these Terms of Use.
2. Changes to the Terms of Use
We may revise and update Terms of Use from time to time at our sole discretion. All changes are effective immediately when posted to the Site.
2.1 Your continued use of the Site following the posting of the revised Terms of Use, indicates your acceptance and agreement to the revised Terms of Use. You are expected to regularly review these Terms of Use, so you are aware of any changes, as they are binding to you.
2.2 Without limiting other rules and prohibitions on these Terms of Use, by using the Site, you agree that:
-You will only use the Site for lawful purposes; you will not use the Site for sending or storing any unlawful material or for deceptive or fraudulent purposes; and you will not engage in conduct that harms other Users, Company employees, or our community.
-You will only use the Site in accordance with all applicable laws, including copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights.
-You will only access the Site using means explicitly authorized by the Company.
– You will not use another user’s account, impersonate any person or entity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Site.
– You will not use the Site to cause nuisance, annoyance, or inconvenience.
– You will not use the Site, or any content accessible through the Site, for any commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to, any merchant, user, or contractor, unless the Company has given you prior permission to do so in writing.
– You will not compile, directly or indirectly, any content displayed through the Site except for your personal, noncommercial use.
– The information you provide to us when you register an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.
– You will not use the Site in any way that could damage, disable, overburden or impair any Company server, or the networks connected to any Company server.
– You will not attempt to gain unauthorized access to the Site and/or to any account, resource, computer system, and/or network connected to any Company server.
– You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures the Company may use to prevent or restrict access to the Services or use of the Services or the content therein.
– You will not deep-link to our Site or access our Site manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy, index, frame, or monitor any portion of our Site or any content on our Site.
– You will not scrape or otherwise conduct any systematic retrieval of data or other content from the Site.
– You will not try to harm other users, the Company, or the Site in any way whatsoever.
– You will not engage in threatening, harassing, racist, sexist or any other behavior that the Company deems inappropriate when using the Site.
– You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Site.
– You will not abuse our promotional or credit code system, including by redeeming multiple coupons at once or by opening multiple accounts to benefit from offers available only to first-time users.
– You will not attempt to undertake any of the foregoing. If we believe or determine that you have breached any of the aforementioned, we reserve the
right to suspend and/or permanently deactivate your account at our sole discretion.
3. Intellectual Property Rights
3.1 All content, information, computer code, and any other materials that are part of the Site are the property of the Company. These Terms of Use permit you to use the Site for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Site, except as follows:
– Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
– You may store files that are automatically cached by your Web browser for display enhancement purposes.
– You may print or download one copy of a reasonable number of pages of the Site for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
– If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use.
3.2 You must not:
– Modify copies of any materials from the Site.
– Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Site.
3.3 You must not access or use for any commercial purposes any part of the Site or any services or materials available through the Site. If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Site in breach of the Terms of Use, your right to use the Site will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Site or any content on the Site is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Site not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.
4. Trademarks
The Company name, the Company logo, and all names, logos, product and service names, designs and slogans are trademarks of the Company. You must not use such marks without the prior written permission of the Company.
5. Copyright
The Site and its contents, including editorial, graphics, banners, placement, and design, is copyrighted by the Company unless otherwise specified. All rights reserved. It is the Company’s policy to terminate services and/or membership privileges of any user who repeatedly infringes copyright upon prompt notification to the Company by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Site in a way that constitutes copyright infringement, please provide us with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Site of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for the Company for notice of claims of copyright infringement.
6. Privacy Policy
By using the Site, you acknowledge that you have reviewed and understand the Site’s Customer Privacy Policy, as set forth in II below (the “Privacy Policy”), which shall be incorporated into these Terms of Use. You agree (i) to provide accurate, current, and complete information about yourself as may be prompted by registration or other forms (collectively, “Registration Data”); (ii) to maintain the security of your password and username; (iii) to maintain and promptly update Registration Data and any other information you provide to the Company; (iv) not to sell, transfer, or assign your account; and (v) to be fully responsible for all use of your account and for any actions that take place using your account.
7. Links from the Site
If the Site contains links to other websites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those websites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
8. Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.
TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT. YOUR USE OF THE SITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE IS AT YOUR OWN RISK. THE SITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
9. Exclusive Remedy and Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING AND WITHOUT LIMITATION, THE NEGLIGENCE OF SUCH AN ENTITY, WILL THE COMPANY, OR ANY OF ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND OR LOSSES, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE SITE OR SUCH OTHER WEBSITE, INCLUDING WITHOUT LIMITATION DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES OR LOST PROFITS, LOSS BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSD BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
10. Indemnification
You agree to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Site, including, but not limited to, any use of the Site’s content, services, and products other than as expressly authorized in these Terms of Use, or your use of any information obtained from the Site.
11. Governing Law and Jurisdiction
All matters relating to the Site and these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction). Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use or the Site shall be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in the County of Santa Clara, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms of Use in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
12. Arbitration
At the Company’s sole discretion, it may require You to submit any disputes arising from these Terms of Use or use of the Site, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying California law.
13. Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
14. Waiver and Severability
No waiver by the Company of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision. If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.
15. Entire Agreement
The Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and the Company regarding the Site and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Site.
16. Comments and Concerns
This Site is operated by Serviceaide, Inc., and its affiliates, including Sunview Software, Inc., and Wendia North America, LLC and Wendia at 2445 Augustine Drive, Suite 150, Santa Clara, CA. All feedback, comments, requests for technical support, and other communications relating to the Site should be directed to: (650) 206-8988 or info@serviceaide.com.
II. CUSTOMER PRIVACY STATEMENT
We updated our privacy statement in February 2024. Thank you for visiting the Serviceaide, Inc. website (the “Site”), which is operated by Serviceaide, Inc., and its affiliates, including Sunview Software, Inc., and Wendia North America, LLC (collectively referred to as “Serviceaide,” the “Company,” “we,” “us,” or “our”). At Serviceaide, we respect the privacy of our customers, business partners, event attendees, job applicants and Site visitors. We are committed to providing a best-in-class experience, while ensuring the privacy and security of your data. The Company is committed to protecting the privacy of individuals who visit the Site and interact with our Services. This Privacy Policy (the “Policy”) explains how the Company collects, uses, and shares information about you (“customer,” “you,” and “your”) that you provide or that we obtain online when you visit the Site or utilize our services (“Service”). This Policy also describes the rights and choices you may have with respect to your Personal Information (as defined below), how you can assert those rights, and how you can reach us to get answers to your questions. Please take a moment to familiarize yourself with our privacy practices. If you have any questions regarding our privacy practices, please see the Contact Us section at the end of this Policy.
For more information about how users with disabilities can access this Policy in an alternative format, please call (650) 206-8988. Please read this Policy carefully to understand our policies and practices regarding your information and how we will treat it. If you do not agree with our policies and practices, your choice is not to use our Site.
Acceptance
Your continued use of the Site and/or the Services constitutes your consent to the contents of this Policy. The Company may change this Policy from time to time. Your continued use of the Site after we make changes is deemed to be an acceptance of those changes, so please check the Policy periodically for updates.
Collection of Personal Information
The Company may collect or receive several types of information from and about users of our Site, including information:
Use of Your Information
The information as described above is used by the Company for provision of the Service, to maintain quality of the Service, and for general statistics regarding use of the Site and the Service and use habits of the Site’s and Service’s users. The data may also be used to respond to one of your requests for more information, or notifications related to Services. The Company will not divulge such Personal Information to third parties. You also acknowledge that the Company may track your use of the Service for statistical purposes or to determine the popularity of certain features of the Services to improve the quality of Service.
Disclosure of Your Information
We may disclose aggregated information about you and information that does not identify any individual, without restriction. We may disclose Personal Information that we collect or you provide as described in this Policy:
Choices About How We Use and Disclose Your Information
We strive to provide you with choices regarding the personal information you provide to us. We have created mechanisms to provide you with the following control over your information:
Security
We have implemented administrative, technical, and physical security controls that are designed to safeguard your Personal Information. However, no online activity is ever fully secure or error-free. While we strive to protect your information, we cannot guarantee that your Personal Information is absolutely secure. Please keep this in mind when disclosing any information to us. Please recognize that protecting your Personal Information is also your responsibility. We urge you to take every precaution to protect your information when you are on the Internet, or when you communicate with us and with others through the Internet. Change your passwords often, use a combination of letters and numbers, and make sure you use a secure browser. If you have reason to believe that your interaction with us is no longer secure (for example, if you feel that the security of your Company account might have been compromised), or if you suspect someone else is using your Company account, please let us know immediately by emailing us at the email or phone number provided in the Contact Us section below.
Children Under the Age of 13
Our Site is not intended for children under 13 years of age. No one under age 13 may provide any Personal Information to or on the Site. We do not knowingly collect Personal Information from children under 13. If you are under 13, do not use or provide any information on this Site or through any of its features, register on the Site, make any purchases through the Site, use any of the interactive or public comment features of this Site, or provide any information about yourself to us, including your name, address, telephone number, email address, or any screen name or user name you may use. If we learn we have collected or received Personal Information from a child under 13 without verification of parental consent, we will delete that information. If you believe we might have any information from or about a child under 13, please contact us at the email address or phone number provided in the Contact Us section below.
Contact Us
If you have any questions or comments regarding this Policy, please do not hesitate to contact us
at info@serviceaide.com or by calling (650) 206-8988.
You may also contact our corporate headquarters by writing to us at:
Serviceaide, Inc.
2445 Augustine Drive, Suite 150
Santa Clara, CA 95054
CALIFORNIA PRIVACY RIGHTS
These provisions apply only to California consumers and supplement this Policy. The California Consumer Privacy Act of 2018 (“CCPA”) and the California Privacy Rights Act of 2020 (“CPRA”), collectively referred to as “California Consumer Privacy Laws,” provide California consumers with specific rights regarding their personal information. This California Privacy Rights provision describes your rights under the California Consumer Privacy Laws, explains how you may exercise your rights, and provides an overview of the types of personal information we collect. To exercise the rights below please see the section entitled How to Contact Us About Your California Privacy Rights. California Consumer Privacy Laws provide you with the following rights:
Consumer Privacy Laws
How to Contact Us About Your California Privacy Rights
Calling us at (650) 206-8988.
Emailing us at info@serviceaide.com.
Verification of Your Identity
After you submit a request, (except as otherwise may be provided under California Consumer Privacy Law with respect to opt-out requests) we must verify your identity in order for us to properly respond and/or confirm that it is not a fraudulent request. To verify your identity, we will request, at a minimum, that you provide your name, email address, phone number, address, and relationship to us, so that we can seek to match this information with the information existing in our systems. When providing us this information, you represent and affirm that all information provided is true and accurate. If we are unable to verify that the consumer submitting the request is the same individual about whom we have collected Personal Information, we may contact you for more information, or we may not be able to meet your request. Only you, or an agent legally authorized to act on your behalf, may make a verifiable request related to your Personal Information. If you are making a request as the authorized agent of a California consumer, we will ask you also submit reliable proof that you have been authorized in writing by the consumer to act on such consumer’s behalf.
Our Response Time to Your Request
We will make every effort to respond to your request within forty-five (45) days from when you contacted us. If you have a complex request, the California Consumer Privacy Laws allow us up to ninety (90) days to respond. We will still contact you within forty-five (45) days from when you contacted us to let you know we need more time to respond.
Sale of Information
In the preceding 12 months, the Company has not sold your internet or other electronic network activity collected via cookies and other tracking technologies to data analytics providers and ad networks.
Categories of Personal Information We Collect and Our Purposes of Collection and Use
You can find a list of the categories of Personal Information we collect in the Collection of Personal Information section above. For information regarding the sources from which we obtain Personal Information, please see the Collection of Personal Information section above. And to learn more about the business or commercial purposes for which we collect and use Personal Information please see the Use of Your Information section above.
Categories of Personal Information Disclosed and Categories of Parties to Whom it was Disclosed
The categories of Personal Information that may have been disclosed to a third party for a business purpose or other commercial purposes, as well as the purposes for disclosing that information, are provided in the Disclosure of Your Information section of this Policy above and are further summarized below.
In the past 12 months, the Company has disclosed the following categories of Personal Information to the following categories of third parties for the purposes stated below:
Sensitive Personal Information
We may collect or process precise geolocation data. This information may be considered “sensitive personal information” under California Consumer Privacy Laws. However, we do not use your geolocation information to infer other characteristics about you. To the extent required by the California Consumer Privacy Laws, you may limit the processing of your sensitive personal information by contacting us through the methods noted above.
CALIFORNIA “SHINE THE LIGHT”
Under California Civil Code Section 1798.83 (“Shine the Light”), California residents have the right to request in writing from businesses with whom they have an established business relationship: (a) a list of the categories of Personal Information, as defined under Shine the Light, such as name, email address, and mailing address, and the type of services provided to the customer that a business has disclosed to third parties (including affiliates that are separate legal entities) during the immediately preceding calendar year for the third parties’ direct marketing purposes; and (b) the names and addresses of all such third parties. To request the above information, please contact us by email at info@serviceaide.com. If you do not want your personal information shared with any third party who may use such information for direct marketing purposes, then you may opt out of such disclosures by sending an email to us at info@serviceaide.com.
VIRGINIA PRIVACY RIGHTS
Virginia law provides Virginia residents with the rights listed below, subject to applicable law. Virginia residents may exercise these rights as detailed below in the section entitled How to Contact Us About Your Virginia Privacy Rights.
How to Contact Us About Your Virginia Privacy Rights
Calling us at (650) 206-8988.
Emailing us at info@serviceaide.com.
1. Appeals
If we decline to take action regarding a request that you have submitted, we will inform you of our reason for declining to take action and provide instructions for how to appeal the decision. In the event that we do not respond to a request that you make pursuant to one of the privacy rights set forth in this Virginia Privacy Rights notice, you have the right to appeal our refusal to take action within a reasonable period of time after you receive our decision. Within 60 days of our receipt of an appeal, we will inform you in writing of any action taken or not taken in response to the appeal, including a written explanation of the reasons for the decisions. If the appeal is denied, we will also provide you with an online mechanism, if available, or other method through which you may contact the Attorney General to submit a complaint.
III. SOFTWARE AS A SERVICE (SAAS) AGREEMENT
This Software as a Service (SaaS) Agreement (the “Agreement”) is entered into between Serviceaide, Inc., and its affiliates, including Sunview Software, Inc., and Wendia North America, LLC (collectively referred to as the “Licensor”) and the Customer identified on the applicable Order Form (“Subscriber”) and shall be effective from the date specified in the Order Form. For purposes of this Agreement, Subscriber and Licensor each will be referred to individually as “Party” and together as “Parties.” For valuable consideration, the receipt and sufficiency of which is acknowledged in the applicable Order Form, the Parties agree as follows:
Definitions
1.1. “Agreement” means collectively, these terms and conditions, the Order Form, and any written amendments signed by both Parties.
1.2. “Authorized Use Limitation” means the limitation on usage of SaaS measured by the metric specified on the Order Form.
1.3. “Authorized Users” means Subscriber’s employees and independent contractors working for Subscriber in the ordinary course of Subscriber’s business who: (i) agree to be bound by the terms of this Agreement; and (ii) are specifically authorized by Subscriber to access and use SaaS.
1.4. “Billing Start Date” means the date identified on the Order Form as the date from which billing shall be calculated (which under no circumstance shall be later than the Service Start Date, as defined below);
1.5. “Consulting Services” means those consultancy services and/or education services provided by Licensor as described in an Order Form or statement of work.
1.6. “Subscriber Data” means information submitted by or entered by an Authorized User or automatically uploaded through the use of the SaaS for processing or storage thereby.
1.7. “Confidential Information” means any and all information disclosed by either party (the “Disclosing Party”) to the other (the “Receiving Party”), which is marked “confidential” or “proprietary” or which should reasonably be understood by the Receiving Party to be confidential or proprietary, including, by way of example only, this Agreement, pricing, SaaS and related software (including source and object code and Documentation), of the Disclosing Party.
1.8. “Documentation” means any published technical manuals, including any updates thereto, relating to the use of the SaaS made generally available by Licensor.
1.9. “Exclusions” means the following events, which events shall be excluded from the calculation of Uptime: (i) Force Majeure Event; (ii) outages due to Scheduled
Downtime; (iii) outages based on Subscriber networks or domain name server issues; (iv) outages due to Subscriber’s configuration, scripting, coding drafted by Subscriber without Licensor’s authorization; (v) internet outages; (vi) Subscriber outages requested by Subscriber; (vii) Subscriber changes to its environment which hinder SaaS production and (viii) inability for Subscriber to log in to SaaS service because of dependence on non-Licensor provided services or components (eg. Lightweight Directory Access Protocol (LDAP) in Subscriber environment). “Force Majeure Event” means an event of force majeure and/or delays caused by an internet service provider or hosting facility that results in data center outages resulting from causes not within Licensor’s control.
1.10. “Intellectual Property” means any intellectual property or proprietary rights recognized in any country or jurisdiction in the world.
1.11. “Order Form” means a signed mutually agreed ordering document such as a Licensor Order Form / Quote for SaaS made available to Subscriber by Licensor and/or for Consulting Services.
1.12. “Regulation” means any applicable governmental law, regulation, rule, or order.
1.13. “SaaS” means the online version of the Licensor software and or type of online service defined in the Order Form and made available to Authorized Users via a website.
1.14. “SaaS Start Date” means the date from which Subscriber receives the applicable SaaS.
1.15. “Scheduled Downtime” means planned downtime of which Licensor has notified Subscriber at least 72 hours in advance.
1.16. “Service Credit” means in the event that Licensor is unable to meet the stated level of Uptime in any month, Subscriber must submit a request for credit, and Licensor will provide to Subscriber a credit against future SaaS fees in the manner and to the extent described below.
1.17. “Subscription Term” means the duration identified on an Order Form during which the SaaS will be provided, and any subsequent renewals.
1.18. “Uptime” means the time the SaaS is available for access and use, but subject to the Exclusions described herein.
2. License to Use the SaaS
2.1. Grant. Subject to the terms and conditions of this Agreement and the applicable Order Form, and payment of applicable fees, during the Subscription Term, Licensor grants to Subscriber a non-exclusive, non-transferable license, without right of sublicense, for Subscriber and its Authorized Users to access and use the SaaS for Subscriber’s internal business purposes up to the Authorized Use Limitation and always in accordance with the Documentation.
2.2. Restrictions on Use. Subscriber shall not edit, alter, abridge, or otherwise change in any manner the content of the SaaS, including, without limitation, all copyright and proprietary rights notices. Subscriber may not, and may not permit others to:
(a) modify, copy, or otherwise reproduce the SaaS in whole or in part;
(b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source
code form or structure of the software used in the SaaS;
(c) provide, lease or lend the SaaS to any third party except as expressly authorized hereunder;
(d) remove any proprietary notices or labels displayed on the SaaS or related software;
(e) modify or create a derivative work of any part of the SaaS or related software; or
(f) use the SaaS or related software for any unlawful purpose.
2.3. Ownership. Licensor or its licensors owns all rights, including Intellectual Property rights, in the SaaS and related software, any materials relating thereto, and any modifications, enhancements, customizations, updates, revisions or derivative works thereof, and all results of Consulting Services, made pursuant to the Agreement. No transfer of ownership will occur under the Agreement. All rights not expressly granted to Subscriber are reserved by Licensor and/or its licensors. In the event any work product or code is created in the provisioning of Consulting Services pursuant to Section 5.2, Licensor shall retain all rights, title and license in such work product or code provided that it shall be licensed to Subscriber under the same terms as the SaaS.
3. Fees, Duration & Payment
3.1. Fees. In exchange for the license granted above, commencing on the Billing Start Date, the Subscriber shall pay Licensor the fees set forth in the applicable Order Form for the Subscription Term, payable in advance.
3.2. Reports. Subscriber is responsible for preparing and submitting monthly reports that shall include information detailing Subscriber’s use of the SaaS and any metrics under which the SaaS are measured in the Order Form. Subscriber shall submit each report to Licensor on the fifteenth day of each calendar month. Failure to comply with this Subsection 3.2 shall be deemed a material breach of this Agreement.
3.3. Overage. If Subscriber exceeds the Authorized Use Limitation at any time during a month, its monthly report shall constitute an order for such excess use, which shall be billed at the rates set forth in the Order Form and remain in effect through the end of the then current Subscription Term. Licensor shall issue an invoice to Subscriber unless Subscriber otherwise provides notice as part of its monthly report that its use of the SaaS was reduced [2497-010/4090924] to the Authorized Use Limitation within that month. In no event may the SaaS quantity be lowered below the original number ordered in the Order Form.
3.4. Subscription Term. Unless either Party gives the other Party written notice of the non-renewal at least ninety (90) days before the end of the Subscription Term, the subscription to the SaaS will automatically renew for additional Subscription Term(s) equal in length to the initial Subscription Term at the conclusion of such Subscription Term and at the then current price plus a six (6.00%) inflationary price increase.
3.5. Payment and Late Fees. Payments are due within 30 days from the date of Licensor’s invoice. Any late payments will accrue charges at the rate of 1% of the outstanding balance per month, or the amount prescribed by law, whichever is lower.
3.6. Taxes. All fees listed in the Order Form(s) are exclusive of any taxes. Subscriber agrees to pay any applicable VAT, GST, sales tax and any other applicable taxes in addition to the fees when such payments are due but excluding taxes on Licensor’s net income.
3.7. Audit. Licensor may audit Subscriber’s use of the SaaS on reasonable written notice and during working hours. If an audit reveals that Subscriber has underpaid fees to Licensor, Subscriber shall be invoiced for and shall pay such fees in accordance with subsection 3.5.
4. Confidentiality and Security
4.1. Confidential Information. Each Party agrees that it will not use or disclose any
Confidential Information received from the other Party other than (i) to perform its obligations under the Agreement or receive the benefit of the SaaS or (ii) as expressly authorized in writing by the other Party. Each Party will use the same degree of care to protect the other Party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither Party will disclose the other Party’s Confidential Information to any person or entity other than its officers, principals, employees and subcontractors who need access to such Confidential Information in order to affect the intent of the Agreement and who are bound by confidentiality terms no less restrictive than those in the Agreement. For SaaS, related software, Documentation and this Agreement the foregoing obligations of this section are perpetual and shall survive termination. For all other Confidential Information, the foregoing obligations shall extend for five (5) years from the date of initial disclosure.
4.2. Exceptions. The restrictions set forth in Subsection 4.1 will not apply to any Confidential Information that the Receiving Party can demonstrate (a) was known to it prior to its disclosure by the Disclosing Party; (b) is or becomes publicly known through no wrongful act of the Receiving Party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed or acquired by the Receiving Party; or (e) has been approved for release in writing by the Disclosing Party’s. Confidential Information may, without breach of Subsection 4.1, be disclosed by court order or as otherwise required by law, provided that the Party required to disclose [2497-010/4090924] the information provides prompt advance notice thereof, to the extent practicable, to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.
4.3. Injunctive Relief. The Parties agree that in addition to any other remedies available at law or hereunder, the Disclosing Party will be entitled to seek injunctive relief for any threatened or actual disclosure by the Receiving Party.
5. Support and Services
5.1. Technical Support. Licensor will provide technical support for the SaaS to operate according to the Documentation, help desk support and Maintenance for the SaaS based on Support guidelines as described on http://www.serviceaide.com/support; however, Licensor is not obligated to maintain or support any customization to the SaaS except under a separate agreement signed by the Parties.
5.2. Consulting Services. Licensor may provide Consulting Services, including training, education or packaged work product components to Subscriber under a separate statement of work or transaction document signed by the Parties. Such services are otherwise outside the scope of the Agreement, are not included as part of the SaaS and only will be provided for additional fees. Fees for such items are payable as specified in the applicable transaction document. For the purposes of computing daily rates, Licensor’s standard workday in the applicable geography shall apply.
5.3. Product License Language. The Consulting Services are to implement the pre-existing features and functions of the SaaS and do not include any customization or development activity that impacts any of the full features and benefits and underlying source code of the SaaS. Payment of SaaS service fees for the SaaS is not contingent upon Subscriber receiving the Consulting Services.
6. Subscriber Data/Security
6.1. Subscriber Data. Subscriber Data shall be protected in the same way as Confidential Information under the Agreement. Licensor will comply with the Privacy Policy as set forth herein at II above in collecting and using the Subscriber Data.
6.2. Security. Licensor uses commercially reasonable practices, including encryption and firewalls, designed to enable Subscriber Data to be disclosed only to Subscriber and Authorized Users.
6.3. Backup. Licensor uses commercially reasonable practices designed to enable the backup of the Subscriber Data consistent with Licensor’s storage policies and procedures, applicable to each twenty-four (24) hour period.
6.4. Restoration of Data. Licensor will not be responsible for any unauthorized access to or alteration, theft or destruction of the Subscriber Data through accident, fraudulent means or devices, unless such access, alteration, theft or destruction is caused as a direct result [2497-010/4090924] of Licensor’s negligence or intentional misconduct, in which case Licensor’s commercially reasonable efforts to restore the Subscriber Data shall be limited to the most recent back-up of the Subscriber Data.
7. Availability
7.1. Availability. Licensor uses commercially reasonable efforts to maintain availability of the SaaS twenty-four (24) hours per day, seven (7) days per week, less Scheduled Downtime, in accordance with Licensor’s policies. Licensor commits to achieve 99.5% Uptime on a monthly basis, less the Exclusions described above. If Uptime falls below 99%, it shall be considered a minor default; and if Uptime falls below 98%, it shall be considered a major default. In the event of a minor default, Subscriber is entitled to a Service Credit equal to two (2) days of SaaS fees, based on the monthly SaaS fees paid. In the event of a major default, Subscriber is entitled to a Service Credit equal to five (5) days of SaaS fees, based on the monthly SaaS fees paid. Any Service Credits issued to Subscriber will be applied towards the next billing period applicable to Subscriber or otherwise as agreed between the Parties. Except to the extent provided in Section 7.2, the Service Credits issued under this Section will be the Subscriber’s sole and exclusive remedy for the default event giving rise to the Service Credit.
7.2. Defaults. In the event there are three (3) major defaults within a three (3) month period of time, upon thirty (30) days written notice to Licensor (which notice shall be received by Licensor within ten (10) business days of the third unexcused major default), Subscriber may terminate this Agreement without incurring any additional charges or termination fees. In the event of such termination the Subscriber shall be entitled to a refund of SaaS fees which have not yet been applied towards the SaaS as of the effective date of termination and/or Licensor shall relieve Subscriber of its obligation to pay for any unused fees applicable in the then current Subscription Term. Except for the provisions of Section
7.1 above, the refund herein shall be Subscriber’s sole and exclusive remedy under this Agreement and any Order Form(s) arising hereunder, and Licensor shall have no further liability arising out of this Agreement and any Order Form(s) arising hereunder.
7.3. Downtime. Scheduled Downtime and unscheduled interruptions may occur, and Licensor does not warrant uninterrupted availability of the SaaS. Normal software or hardware upgrades are scheduled for nights and weekends, Pacific Standard Time, and intended to cause a minimum amount of interruption to SaaS availability. In the event that an unscheduled interruption occurs, Licensor will use commercially reasonable efforts to resolve the problem and return the SaaS to availability as soon as practical. During such Scheduled Downtime and unscheduled interruptions, Subscriber may be unable to transmit and receive data through the SaaS. Subscriber agrees to cooperate with Licensor during the Scheduled Downtime and unscheduled interruptions if assistance from Subscriber is necessary in order to restore the SaaS to working order.
7.4. Exclusions. The Exclusions defined above shall be excluded from the calculation of Uptime.
7.5. Changes. In addition to Scheduled Downtime, Licensor may also temporarily restrict Subscriber’s access to parts of the SaaS for necessary, unplanned maintenance or system administration purposes without notice or liability.
8. Term & Termination
8.1. Term. The Term of this Agreement shall commence on the first day of the first applicable Subscription Term and will terminate when (a) all Subscription Terms and any renewals thereof entered into pursuant to the Agreement have expired or been terminated or (b) the Agreement is otherwise terminated as provided for herein.
8.2. Termination for Cause. The Agreement may be terminated by either Party (a) upon a material breach by the other Party, provided that, in each instance of a claimed breach: (i) the nonbreaching Party notifies the breaching Party in writing of such breach; and (ii) the breaching Party fails to either cure such breach within thirty (30) days from receipt of such notice; or (b) upon insolvency of or the filing of bankruptcy by the other Party, if permitted by law.
8.3. Effect of Termination. Upon any termination of the Agreement the due dates of all payments under the Order Forms will automatically be accelerated so that such payments become due and payable on the effective date of termination. All rights granted hereunder shall immediately terminate and Subscriber shall return or destroy all Licensor Confidential Information in its possession.
8.4. Liquidated Damages. If this Agreement is terminated before the end of its then current term for any reason other than by Subscriber under Subsections 7.2 or 8.2, then Subscriber will pay to Licensor as liquidated damages the amount due by Subscriber for the previous calendar month times the number of months remaining in such Subscription Term (“Liquidated Damages”) within 30 days after such termination. The Parties agree that the Liquidated Damages under this clause are not intended to be and will not be punitive in effect and that the Liquidated Damages are a genuine pre-estimate of loss (which may be difficult to ascertain) resulting from early termination of this Agreement. Notwithstanding
anything to the contrary contained in this Agreement, if Subscriber receives any notice of late payment under this Agreement in any form, written or electronic, from Licensor including any business division (e.g., Licensor’s Credit Department), such notice will be deemed to be a Notice of Breach.
9. Warranties
9.1. Warranty. During the (i) Subscription Term as stated in the applicable Order Form or (ii) thirty (30) days from the provision of Consulting Services, as applicable, Licensor warrants that (a) when the SaaS are used in an operating environment stated in the Documentation as supported by Licensor, the SaaS will materially conform to the Documentation; and (b) Consulting Services shall be performed in accordance with industry standards using reasonable care and skill, and provided in accordance with Licensor’s then-prevailing policies. If it is established that Licensor has breached either of the warranties above, Licensor’s only obligation and Subscriber’s exclusive remedy shall be for Licensor to, at its option, (1) use reasonable efforts to cure the defect in the SaaS, or re-perform the nonconforming Consulting Services, as applicable; or (2) terminate the applicable subscription and provide a refund of pre-paid, unused fees calculated against the remainder of the Subscription Term. This warranty and the remedies offered are applicable only if Subscriber reports the alleged breach with reasonable specificity in writing within thirty (30) days from its occurrence.
9.2. Disclaimer. THE ABOVE WARRANTIES ARE LICENSOR’S ONLY WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, TO THE EXTENT PERMITTED BY LAW. LICENSOR DOES NOT WARRANT THAT LICENSOR’S SAAS, RELATED SOFTWARE CONSULTING SERVICES OR MAINTENANCE WILL MEET SUBSCRIBER’S REQUIREMENTS OR THAT USE OF THE SAAS AND SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. AS SUCH ANY AND ALL WARRANTY FOR CONCEALED DEFECT IS EXPRESSLY EXCLUDED. FURTHER, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SAAS, THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS AND LICENSOR DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES (EXCEPT THOSE LISTED ABOVE), EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
10. Indemnification
10.1. Subscriber Indemnity. Subscriber, at its expense, will defend, indemnify, and hold Licensor harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorney’s fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Licensor which directly relate to a claim, action, lawsuit, or proceeding made or brought against Licensor by a third party alleging (i) the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark (each a “Licensor Claim”) by way of Licensor’s use of any Subscriber content that Subscriber provides to Licensor and Licensor uses in the provision of any Services; (ii) the failure of Subscriber to comply with any Regulation; (iii) any breach or alleged breach of the terms, obligations, and covenants under this Agreement by Subscriber or Authorized Users (including Subscriber’s personnel, contractors, or any service providers); (iv) the negligence, willful misconduct, or any act or omission of Subscriber (including its personnel, contractors or any service providers), (v) any bodily injury (including death) or damage to tangible or real property to the extent caused by or in connection with Subscriber’s performance under this Agreement; or (vii) any security breach involving Subscriber information or Subscriber personnel data resulting from Subscriber’s use of the SaaS.
10.2. Licensor Infringement Indemnity. Licensor will indemnify, defend and/or, at its option, settle any third-party claims that the results of any Consulting Services or Subscriber’s use of the SaaS and/or related Licensor software pursuant to the Agreement infringes any valid US patent, or copyright within the jurisdictions where Subscriber is authorized to access the SaaS. Licensor may, at its option and expense take action to: (i) procure for Subscriber the right to continue to use the SaaS and/or Consulting Services; (ii) repair, modify or replace the SaaS and/or Consulting Services so that it is no longer infringing; or (iii) provide a pro-rated refund of the fees paid for the SaaS and/or Consulting Services which gave rise to the indemnity calculated against the remainder of the Subscription Term from the date it is established that Licensor is notified of the third party claim. The above indemnity is contingent upon: (i) Subscriber providing prompt notice of any claim of infringement and assistance in the defense thereof, (ii) Licensor’s sole right to control the defense or settlement of any such claim, and (iii) Subscriber not taking any actions or failing to take actions that hinder the defense or settlement process as reasonably directed by the Licensor.
11. Limitation on Liability
11.1. IN NO EVENT SHALL LICENSOR AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND LICENSORS (“THE PARTIES”) BE LIABLE (JOINTLY OR SEVERALLY) TO SUBSCRIBER, AUTHORIZED USERS, OR ANY THIRD PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, LOST DATA, AND LOST REVENUES (COLLECTIVELY, THE “EXCLUDED DAMAGES”), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILIY OF LICENSOR ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF EXCEED THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN THE LICENSOR’S LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW. SUBSCRIBER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR FOR ANY LOSS, DAMAGE OR COST IN CONNECTION WITH ANY CLAIM OR ACTION WHICH MAY BE BROUGHT BY ANY THIRD PARTY AGAINST LICENSOR RELATING TO ANY BREACH OF THIS AGREEMENT BY SUBSCRIBER.
12. Copyright Protection
12.1. Copyright Protection; Use Restrictions; Security. Subscriber agrees that the SaaS, including without limitation, the editorial coding and metadata contained therein, are the property of Licensor or Licensor’s licensors. The works and databases included in the content of the SaaS are protected by applicable copyright laws. Subscriber agrees that only Authorized Users shall be permitted access to the SaaS. Except as set forth herein, no clients or other persons or entities who are not legal employees of Subscriber or independent contractors consulting for Subscriber in the ordinary course of Subscriber’s business may be Authorized Users. Subscriber shall not reverse engineer, decompile or disassemble any part of the SaaS. Subscriber further agrees that neither Subscriber nor any Authorized User shall store (except as permitted under this Agreement for retrieval and display purposes only), copy, reproduce, retransmit, disseminate, sublicense, sell, distribute, publish, broadcast, circulate, create derivative works (including, without limitation, trading algorithms), test algorithms in conjunction with, or distribute by any means the SaaS in whole or in part to anyone, including, but not limited to, other employees of Subscriber, without Licensor’s express prior written consent; provided, however, that Authorized Users may on an occasional basis in the normal course of business include limited portions of the SaaS (a) in oral and (with proper attribution to the respective Service) non-electronic written communications with clients and other employees, and (b) in email and instant messaging communications with other employees and/or securities professionals. Without limiting the foregoing, under no circumstances shall distribution under this Section by Subscriber be permitted if such distribution may be viewed as a substitute for a subscription to the SaaS itself. Subscriber agrees that when using the SaaS in this way, the facts, content, and intent of the SaaS will not be changed in form or in spirit or otherwise in any way be prejudicial to the integrity of the service or Licensor. Other than as expressly set forth in this Agreement, no license or intellectual property rights owned or licensed by Licensor are granted to Subscriber, and all such rights are hereby expressly reserved.
13. General Provisions
13.1. Notices. All notices under the Agreement must be in writing. Notices will be deemed received by the Party to whom the notice is addressed two (2) working days from posting.
13.2. Independent Contractors. The relationship between Licensor and Subscriber is strictly that of independent contractors.
13.3. Governing Law; Venue. The validity, construction and interpretation of the Agreement will be governed by the internal laws of the State of California, excluding its conflict of laws provisions. The Parties consent to the exclusive jurisdiction and venue of the Federal and State Courts located in Santa Clara County, California, for any action arising hereunder. [2497-010/4090924]
13.4. Survival of Terms. The following provisions will survive and remain in effect after termination of this Agreement: 1, 2.2, 2.3, 3.5, 4, 8, 9.2, 11 and 13.
13.5. Assignment. The Agreement may not be assigned by Subscriber without the prior written consent of Licensor, consent not to be unreasonably withheld.
13.6. Export Requirements. The SaaS and related software are each subject to export laws and controls of the United States of America and import controls of any other country in which such information may be used. Subscriber agrees to export, re-export or import the SaaS or related software only in compliance with such laws and controls.
13.7. Publicity. Licensor may use Subscriber’s name and logo in Licensor’s marketing materials, including use on Licensor’s website and in press releases, subject to Subscriber’s prior approval of the content of any such release.
13.8. Subscriber Data. If Subscriber transfers any personal data to Licensor as a
requirement in connection with the SaaS, then Subscriber represents that (i) it is duly authorized to provide personal data to Licensor and it does so lawfully in compliance with relevant legislation, (ii) Subscriber accepts that Licensor does not allow the recording of any sensitive personal data in its products, and has no provision to identify, distinguish, or detect that personal information has been introduced into its products, consequently Licensor assumes no responsibility for the safeguarding of personal information beyond best commercial practices to secure all data stored within its products, including but not limited to data encryption at rest, data encryption in motion, and strict password authentication and authorization into the system and (iii) Licensor and any entity within the Licensor’s group of companies or its subcontractors can use such data for the purposes of performing its obligations and (iv) Licensor may disclose such data to any Licensor entity and its subcontractors for this purpose and may transfer such data to countries outside of the country of origin. Licensor is Safe Harbor certified and the Licensor entities have committed to comply with relevant data protection/privacy legislation.
13.9. Severability. If any provision or portion of this Agreement or its application in a
particular circumstance is held to be invalid or unenforceable to any extent in any
jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be
ineffective to the extent of such unenforceability. All other provisions and portions of them hereunder will not be affected by the invalidity and will be valid and enforced to the fullest extent permitted by law.
13.10. No Waiver of Rights. No delay or omission by either Party to exercise any right or power it has under the Agreement will be construed as a waiver of such right or power. All waivers must be in writing and signed by the Party waiving its rights.
13.11. Injunctive Relief. If Subscriber breaches Section 2 of this Agreement, Licensor will be entitled, in addition to any other rights available under this Agreement or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Subscriber acknowledges and agrees to not contest such application.
13.12. Third Party Software. Any third party software contained in the SaaS shall be
subject to the terms, conditions and notices governing its use that are found in the Documentation accompanying the SaaS or related software and/or at http://www.serviceaide.com/support and/or presented to, and accepted by, Subscriber during the initiation of the SaaS. Subscriber shall not settle any third party claims arising from Licensor’s Intellectual Property without Licensor’s prior written consent.
13.13. Entire Agreement. The Agreement constitutes the entire agreement between Licensor and Subscriber with respect to the subject matter hereof. The Agreement supersedes all prior negotiations, agreements, and undertakings between the Parties with respect to such subject matter.
13.14. No Oral Modification. No modification of the Agreement will be effective unless contained in writing and signed by an authorized representative of each Party. No term or condition contained in Subscriber’s purchase order or similar document will apply unless agreed upon in an express written amendment to the Agreement, even if Licensor has accepted the order set forth in such purchase order, and all such terms or conditions are otherwise hereby expressly rejected by Licensor.
13.15. Conflict with Order Form. In the event of a conflict between these Terms and the Order Form, the Order Form will govern.
13.16. Force Majeure. Any failure or delay by Licensor in the performance of its
obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, pandemics, epidemics, local disease outbreaks, public health emergencies, communicable diseases, and quarantines, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States or any nation where the obligations under this Agreement are to be executed, strikes, supplier and third party failure, lockouts, or labor difficulties, or any similar cause beyond the reasonable control of Licensor.
IV. MSP SaaS Terms This Managed Service Provider Software as a Service (“SaaS”) Agreement (the “Agreement”) is entered into between Serviceaide, Inc., and its affiliates, including Sunview Software, Inc., and Wendia North America, LLC (collectively referred to as the “Licensor”) and the Customer identified on the applicable Order Form (“Service Provider”) and shall be effective from the date specified in the Order Form. For purposes of this Agreement, Service Provider and Licensor each will be referred to individually as “Party” and together as “Parties.” For valuable consideration, the receipt and sufficiency of which is acknowledged in the applicable Order Form, the Parties agree as follows:
1. Definitions
1.1. “Agreement” means collectively, these terms and conditions, the Order Form, and any written amendments signed by both Parties.
1.2. “Authorized Use Limitation” means the limitation on usage of SaaS measured by the metric specified on the Order Form.
1.3. “Authorized Users” means Service Provider, its employees and independent contractors that access and use SaaS to provide Managed Services provided that they agree to be bound by terms and conditions no less restrictive than those contained in the Agreement and solely to the extent that they are acting on behalf of Service Provider.
1.4. “Billing Start Date” means the date identified on the Order Form as the date from which billing shall be calculated (which under no circumstance shall be later than the Service Start Date, as defined below).
1.5. “Compliance Rules” means, including but not limited to, the following: US Foreign Corrupt Practices Act, as if they directly applied to Service Provider; local laws on prevention of bribery in the country in which Service Provider carries on its business; the OECD Convention on Combating Bribery of Foreign Public Official in International Business transactions, and international accounting standards.
1.6. “Confidential Information” means any and all information disclosed by either party (the “Disclosing Party”) to the other (the “Receiving Party”), which is marked “confidential” or “proprietary” or which should reasonably be understood by the
Receiving Party to be confidential or proprietary, including, by way of example only, this Agreement, pricing, SaaS and related software (including source and object code and Documentation), of the Disclosing Party.
1.7. “Consulting Services” means those consultancy services and/or education services provided by Licensor as described in an Order Form or statement of work.
1.8. “Documentation” means any published technical manuals, including any updates thereto, relating to the use of the SaaS made generally available by Licensor.
1.9. “End User” means an unaffiliated, third-party customer of Service Provider that receives Managed Services for such third party’s internal business purposes from Service Provider.
1.10. “Exclusions” means the following events, which events shall be excluded from the calculation of Uptime (i) Force Majeure Event; (ii) outages due to Scheduled Downtime; (iii) outages based on Service Provider’s networks or domain name server issues; (iv) Service Provider’s configuration, scripting, coding drafted by Service Provider without Licensor’s authorization or knowledge; (v) internet outages; (vi) Service Provider outages requested by Service Provider; (vii) Service Provider changes to its environment which hinder SaaS production and (viii) inability for Service Provider to log in to SaaS service because of dependence on non-Licensor provided services or components (eg. Lightweight Directory Access Protocol (LDAP) in Service Provider environment). “Force Majeure Event” means an event of force majeure and/or delays caused by an internet service provider or hosting facility that results in data center outages resulting from causes not within Licensor’s control.
1.11. “Intellectual Property” means any intellectual property or proprietary rights recognized in any country or jurisdiction in the world including, without limitation, patents and copyrights.
1.12. “Managed Services” means such services provided by Service Provider as a managed offering to its End Users using the SaaS.
1.13. “Order Form” means a signed mutually agreed ordering document such as a Licensor Order Form / Quote for SaaS made available to Service Provider by Licensor and/or for consulting services.
1.14. “Public Sector End User” means any country, state, county, city or local government bodies or agencies, including judiciaries, legislatures and departments created and or funded by any of the foregoing governmental funds. With respect to the United States, a Public Sector End User means the United States federal government, including legislative, judicial and executive branches, any US Government agency or corporation that was formed by and is currently existing and operating pursuant to an act of Congress, as well as any US Government owned contractor operated facility.
1.15. “Regulation” means any applicable governmental law, regulation, rule, or order.
1.16. “SaaS” means the online version of the Licensor software and or type of online service defined in the Order Form and made available to Authorized Users via a website.
1.17. “Scheduled Downtime” means planned downtime of which Licensor has notified Service Provider at least 72 hours in advance.
1.18. “Service Credit” means in the event that Licensor is unable to meet the stated level of Uptime in any month, Service Provider must submit a request for credit, and Licensor will provide to Service Provider a credit against future service fees in the manner and to the extent described below.
1.19. “Service Provider” means the entity identified in the applicable Order Form which incorporates this Agreement.
1.20. “Service Provider Data” means information submitted by, or entered by an Authorized User or automatically uploaded through the use of the SaaS for processing or storage thereby.
1.21. “Subscription Term” means the duration identified on an Order Form, during which the SaaS will be provided and any subsequent renewals.
1.22. “Uptime” means the time in which the SaaS are available for access and use through the SaaS, but subject to the Exclusions described herein.
2. License to Use the SaaS
2.1. Grant. Subject to these terms and conditions of this Agreement and the applicable Order form, and payment of applicable fees, during the Subscription Term, Licensor grants to Service Provider a non-exclusive, non-transferable license, without right of sublicense, for Service Provider’s Authorized Users to access and use the SaaS up to the Authorized Use Limitation in accordance with the Documentation to provide Managed Services to End Users. Service Provider agrees it shall be liable for each Authorized User’s compliance with the terms of this Agreement.
2.2. Restrictions on Use. Service Provider shall not directly or indirectly edit, alter, abridge, or otherwise change in any manner the contents of the SaaS, including, without limitation, all copyright and proprietary rights notices. Service Provider may not, and may not permit others to:
(a) modify, copy, or otherwise reproduce the SaaS in whole or in part;
(b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the software used in the SaaS;
(c) provide, lease or lend the SaaS or related software to any third party except as expressly authorized hereunder;
(d) remove any proprietary notices or labels displayed on the SaaS or related software;
(e) modify or create a derivative work of any part of the SaaS; or
(f) use the SaaS or related software for any unlawful purpose.
2.3. Service Provider Obligations. Service Provider represents and warrants that it shall:
(a) make commercially reasonable efforts to provide technical support to End Users in a professional and workmanlike manner in accordance with industry standards;
(b) secure the SaaS and related software; [2497-010/4090924]
(c) not make any representations, warranties or create obligations or liabilities on behalf of Licensor. Service Provider agrees not to provide any representation or statement regarding the compliance of the SaaS or of Licensor to any Public Sector End User certification, legal requirement or any other representations without the prior written consent of Licensor.
2.4. Ownership. Licensor or its licensors owns all rights, including Intellectual Property rights, in the SaaS or related software, any materials relating thereto, and any modifications, enhancements, customizations, updates, revisions or derivative works thereof, and all results of consulting services, made pursuant to this Agreement. No transfer of ownership will occur under this Agreement. All rights not expressly granted to Service Provider are reserved by Licensor. In the event any work product or code is created in the provisioning of consulting services pursuant to Section 5.2 herein, Licensor shall retain all rights, title and license in such work product or code provided that it shall be licensed to Service Provider under the same terms as the SaaS.
3. Fees, Duration & Payment
3.1. Fees. In exchange for the license granted above, commencing on the Billing Start Date Service Provider shall pay Licensor the fees set forth in the applicable Order Form for the Subscription Term, payable in advance.
3.2. Reports. Service Provider shall be responsible for preparing and submitting monthly reports that shall comprise information detailing Service Provider’s use of the SaaS and any metrics under which the SaaS are measured in the Order Form. Service Provider shall submit each report to Licensor on the fifteenth day of each calendar month. Failure to comply with this Subsection 3.2 shall be deemed a material breach of this Agreement.
3.3. Overage. If Service Provider exceeds the Authorized Use Limitation at any time during a month, its monthly report shall constitute an order for such excess use, which shall be billed at the rates set forth in the Order Form and remain in effect through the end of the then current Subscription Term. Licensor shall issue an invoice to Service Provider unless Service Provider otherwise provides notice as part of its monthly report that its use of the SaaS was reduced to the Authorized Use Limitation within that month. In no event may the SaaS quantity be lowered below the original number ordered in the Order Form.
3.4. Subscription Term. Unless either Party gives the other Party written notice of the non-renewal at least ninety (90) days before the end of the Subscription Term, the subscription to the SaaS will automatically renew for additional Subscription Term(s) equal in length to the initial Subscription Term at the conclusion of such Subscription Term and at the then current price plus a six (6.00%) inflationary price increase.
3.5. Payment. Payments are due within 30 days from the date of Licensor’s invoice. Any late payments will accrue charges at the rate of 1% of the outstanding balance per month, or the amount prescribed by law, whichever is lower.
3.6. Taxes. All fees listed in the Order Form(s) are exclusive of any taxes. Service Provider agrees to pay any applicable VAT, GST, sales tax and any other applicable taxes in addition to the fees when such payments are due but excluding taxes on Licensor’s net income.
3.7. Audit. Licensor may audit Service Provider’s use of the SaaS and related software on reasonable notice and during working hours. If an audit reveals that Service Provider has underpaid fees to Licensor, Service Provider shall be invoiced for and shall pay such fees in accordance with Subsection 3.5.
4. Confidentiality and Security
4.1. Confidential Information. Each Party agrees that it will not use or disclose any
Confidential Information received from the other Party other than (i) to perform its obligations under the Agreement or receive the benefit of the SaaS or (ii) as expressly authorized in writing by the other party. Each Party will use the same degree of care to protect the other Party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither Party will disclose the other Party’s Confidential Information to any person or entity other than its officers, principals, employees and subcontractors who need access to such Confidential Information in order to affect the intent of the Agreement and who are bound by confidentiality terms no less restrictive than those in this Agreement. For SaaS, related software, Documentation and this Agreement the foregoing obligations of this section are perpetual and shall survive termination. For all other Confidential Information, the foregoing obligations shall extend for five (5) years from the date of initial disclosure.
4.2. Exceptions. The restrictions set forth in Subsection 4.1 will not apply to any Confidential Information that the Receiving Party can demonstrate (a) was known to it prior to its disclosure by the Disclosing Party; (b) is or becomes publicly known through no wrongful act of the Receiving Party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed or acquired by the Receiving Party; or (e) has been approved for release in writing by the Disclosing Party. Confidential Information may, without breach of Subsection 4.1, be disclosed by court order or as otherwise required by law, provided that the Party required to disclose the information provides prompt advance notice thereof, to the extent practicable, to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.
4.3. Injunctive Relief. The Parties agree that in addition to any other remedies available at law or hereunder, the Disclosing Party will be entitled to seek injunctive relief for any threatened or actual disclosure by the Receiving Party.
5. Support and Services
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5.1. Technical Support. Licensor will provide technical support for the SaaS to operate according to the Documentation, help desk support and maintenance for the SaaS based on support guidelines as described on http://www.support.SA.com; however, Licensor is not obligated to maintain or support any customization to the SaaS except under a separate agreement signed by the Parties. Service Provider shall be solely responsible for all technical support to End Users and Licensor shall only provide technical support to Service Provider for End User related technical request after Service Provider has made reasonable efforts to address such issues with its own staff.
5.2. Consulting Services. Licensor may provide Consulting Services, training, education or packaged work product components to Service Provider under a separate statement of work or transaction document signed by the parties. Such services are otherwise outside the scope of this Agreement, are not included as part of the SaaS and only will be provided for additional fees. Fees for such items are payable as specified in the applicable transaction document. For the purposes of computing daily rates, Licensor’s standard workday in the applicable geography shall apply.
5.3. Product License Language. The Consulting Services are to implement the pre-existing features and functions of SaaS and do not include any customization or development activity that impacts any of the full features and benefits and underlying source code of the Licensor software. Payment of license fees and/or support fees for Licensor software is not contingent upon Service Provider receiving the consulting services.
6. Service Provider Data/Security
6.1. Service Provider Data. Service Provider Data shall be protected in the same way as Confidential Information under this Agreement. Licensor will comply with the Privacy Policy set forth herein at II above in collecting and using the Service Provider Data.
6.2. Security. Licensor uses commercially reasonable practices, including encryption and firewalls, designed to enable Service Provider Data to be disclosed only to Service Provider and Authorized Users.
6.3. Backup. Licensor uses commercially reasonable practices designed to enable the backup of the Service Provider Data consistent with Licensor’s storage policies and procedures, applicable to each twenty-four (24) hour period.
6.4. Restoration of Data. Licensor will not be responsible for any unauthorized access to, alteration, theft or destruction of the Service Provider Data through accident, fraudulent means or devices, unless such access, alteration, theft or destruction is caused as a direct result of Licensor’s negligence or intentional misconduct, in which case Licensor’s commercially reasonable efforts to restore the Service Provider Data shall be limited to the most recent back-up of the Service Provider Data.
7. Availability
7.1. Availability. Licensor uses commercially reasonable efforts to maintain availability of the SaaS twenty-four (24) hours per day, seven (7) days per week, less Scheduled Downtime, in accordance with Licensor’s policies. Licensor commits to achieve 99.5% Uptime on a monthly basis, less the Exclusions defined above. If Uptime falls below 99%, it shall be considered a minor default; and if Uptime falls below 98%, it shall be considered a major default. In the event of a minor default, Service Provider is entitled to a Service Credit equal to two (2) days of SaaS fees, based on the monthly SaaS fees paid. In the event of a major default, Service Provider is entitled to a Service Credit equal to five (5) days of SaaS fees, based on the monthly SaaS fees paid. Any Service Credits issued to Service Provider will be applied towards the next billing period applicable to Service Provider or otherwise as agreed between the Parties. Except to the extent provided in Subsection 7.2, the Service Credits issued under this Section will be the Service Provider’s sole and exclusive remedy for the default event giving rise to the Service Credit.
7.2. Defaults. In the event there are three (3) major defaults within a three (3) month period of time, upon thirty (30) days written notice to Licensor (which notice shall be received by Licensor within ten (10) business days of the third unexcused major default), Service Provider may terminate this Agreement without incurring any additional charges or termination fees. In the event of such termination the Service Provider shall be entitled to a refund of SaaS fees which have not yet been applied towards the SaaS as of the effective date of termination and/or Licensor shall relieve Service Provider of its obligation to pay for any unused fees applicable in the then current Subscription Term. Except for the provisions of Subsection 7.1 above, the refund herein shall be Service Provider’s sole and exclusive remedy under this Agreement and any Order Form(s) arising
hereunder, and Licensor shall have no further liability arising out of this Agreement and any Order Form(s) arising hereunder.
7.3. Downtime. Scheduled Downtime and unscheduled interruptions may occur, and Licensor does not warrant uninterrupted availability of the SaaS. Normal software or hardware upgrades are scheduled for nights and weekends, Pacific Standard Time, and intended to cause a minimum amount of interruption to SaaS availability. In the event that an unscheduled interruption occurs, Licensor will use commercially reasonable efforts to resolve the problem and return the SaaS to availability as soon as practical. During such Scheduled Downtime and unscheduled interruptions, Service Provider may be unable to transmit and receive data through the SaaS. Service Provider agrees to cooperate with Licensor during the Scheduled Downtime and unscheduled interruptions if assistance from Service Provider is necessary in order to restore the SaaS to working order.
7.4. Exclusions. The Exclusions defined above shall be excluded from the calculation of Uptime.
7.5. Changes. In addition to Scheduled Downtime, Licensor may temporarily restrict Service Provider’s access to parts of the SaaS for necessary unplanned maintenance or system administration purposes without notice or liability.
8. Term & Termination
8.1. Term. The Term of this Agreement shall commence on the first day of the first
applicable Subscription Term and will terminate when (a) all Subscription Terms and any renewals thereof entered into pursuant to the Agreement have expired or been terminated or (b) the Agreement is otherwise terminated as provided for herein.
8.2. Termination for Cause. The Agreement may be terminated by either party (a) upon a material breach by the other party, provided that, in each instance of a claimed breach: (i) the nonbreaching party notifies the breaching party in writing of such breach; and (ii) the breaching party fails to either cure such breach within thirty (30) days from receipt of such notice; or (b) upon insolvency of or the filing of bankruptcy by the other party, if permitted by law.
8.3. Effect of Termination. Upon any termination of the Agreement the due dates of all payments under the Order Forms will automatically be accelerated so that such payments become due and payable on the effective date of termination. All rights granted hereunder shall immediately terminate and Service Provider shall return or destroy all Licensor Confidential Information in its possession.
8.4. Liquidated Damages. If this Agreement is terminated before the end of its then current term for any reason other than by Service Provider under Subsections 7.2 or 8.2, then Service Provider will pay to Licensor as liquidated damages the amount due by Service Provider for the previous calendar month times the number of months remaining in such Subscription Term (“Liquidated Damages”) within thirty (30) days after such termination. The Parties agree that the Liquidated Damages under this clause are not intended to be and will not be punitive in effect and that the Liquidated Damages are a genuine pre-estimate of loss (which may be difficult to ascertain) resulting from early termination of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, if Service Provider receives any notice of late payment under this Agreement in any form, written or electronic, from Licensor including any business division (e.g., Licensor’s Credit Department), such notice will be deemed to be a Notice of Breach.
9. Warranties
9.1. Warranty. During the first (i) ninety (90) days from the beginning of the initial Subscription Term as stated in the applicable Order Form or (ii) thirty (30) days from the provision of Consulting Services, as applicable, Licensor warrants that (a) when the SaaS are used in an operating environment stated in the Documentation as supported by Licensor, the SaaS will materially conform to the Documentation; and (b) Consulting Services shall be performed in accordance with industry standards using reasonable care and skill, and provided in accordance with Licensor’s then-prevailing policies. If it is established that Licensor has breached either of the warranties above, Licensor’s only obligation and Service Provider’s exclusive remedy shall be for Licensor to, at its option, (1) use reasonable efforts to cure the defect in the SaaS, or re perform the nonconforming Consulting Services, as applicable; (2) replace the SaaS with SaaS that materially conform to the specifications in the Documentation; or (3) terminate the applicable subscription and provide a refund of pre-paid, unused fees calculated against the remainder of the Subscription Term. This warranty and the remedies offered are applicable only if Service Provider reports the alleged breach with reasonable specificity in writing within thirty (30) days from its occurrence.
9.2. Disclaimer. THE ABOVE WARRANTIES ARE LICENSOR’S ONLY WARRANTIES
AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, TO THE EXTENT PERMITTED BY LAW. LICENSOR DOES NOT WARRANT THAT LICENSOR’S SAAS, RELATED SOFTWARE, CONSULTING SERVICES OR MAINTENANCE WILL MEET SERVICE PROVIDER’S REQUIREMENTS OR THAT USE OF THE SAAS AND RELATED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. FURTHER, SERVICE PROVIDER ACKNOWLEDGES AND AGREES THAT THE SAAS, THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS AND LICENSOR DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES (EXCEPT THOSE LISTED ABOVE), EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
10. Indemnification
10.1. Service Provider Indemnity. Service Provider, at its expense, will defend, indemnify, and hold Licensor harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorney’s fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Licensor which directly relate to a claim, action, lawsuit, or proceeding made or brought against Licensor by a third party alleging (i) the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark (each a “Licensor Claim”) by way of Licensor’s use of any Service Provider’s content that Service Provider provides to Licensor and Licensor uses in the provision of any Services; (ii) the failure of Service Provider to comply with any Regulation; (iii) any breach or alleged breach of the terms, obligations, and covenants under this Agreement by Service Provider or Authorized Users (including Service Provider’s personnel, contractors, or any service providers); (iv) the negligence, willful misconduct, or any act or omission of Service Provider (including its personnel, contractors or any other service providers), (v) any bodily injury (including death) or damage to tangible or real property to the extent caused by or in connection with Service Provider’s performance under this Agreement; or (vii) any security breach involving Service Provider information or Service Provider personnel data resulting from Service Provider’s use of the SaaS.
10.2. Licensor Indemnity. Licensor will indemnify, defend and/or, at its option, settle any third party claims that the results of any Consulting Services or Service Provider’s use of the SaaS and/or related Licensor software pursuant to the Agreement infringes any valid US patent, or copyright within the jurisdictions where Service Provider is authorized to access the SaaS. Licensor may, at its option and expense take action to: (i) procure for Service Provider the right to continue to use the SaaS and/or Consulting Services; (ii) repair, modify or replace the SaaS and/or Consulting Services so that it is no longer infringing; or (iii) provide a pro-rated refund of the fees paid for the SaaS and/or Consulting Services which gave rise to the indemnity calculated against the remainder of the Subscription Term from the date it is established that Licensor is notified of the third party claim. The above indemnity is contingent upon: (i) Service Provider providing prompt notice of any claim of infringement and assistance in the defense thereof, (ii) Licensor’s sole right to control the defense or settlement of any such claim, and (iii) Service Provider not taking any actions or failing to take actions that hinder the defense or settlement process as reasonably directed by the Licensor.
11. Limitation of Liability
11.1. IN NO EVENT SHALL LICENSOR AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND LICENSORS (“THE PARTIES”) BE LIABLE (JOINTLY OR SEVERALLY) TO SERVICE PROVIDER, AUTHORIZED USERS, OR ANY THIRD PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, LOST DATA, AND LOST REVENUES (COLLECTIVELY, THE “EXCLUDED DAMAGES”), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILIY OF LICENSOR ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF EXCEED THE AGGREGATE AMOUNT PAID BY SERVICE PROVIDER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN THE LICENSOR’S LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW. SERVICE PROVIDER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR FOR ANY LOSS, DAMAGE OR COST IN CONNECTION WITH ANY CLAIM OR ACTION WHICH MAY BE BROUGHT BY ANY THIRD PARTY AGAINST LICENSOR RELATING TO ANY BREACH OF THIS AGREEMENT BY SERVICE PROVIDER.
12. Copyright Protection
12.1. Copyright Protection; Use Restrictions; Security. Service Provider agrees that the SaaS, including without limitation, the editorial coding and metadata contained therein, are the property of Licensor or Licensor’s licensors. The works and databases included in the content of the SaaS are protected by applicable copyright laws. Service Provider agrees that only Authorized Users shall be permitted access to the SaaS. Except as set forth herein, no clients or other persons or entities who are not legal employees of Service Provider or independent contractors consulting for Service Provider in the ordinary course of Service Provider’s business may be Authorized Users. Service Provider shall not reverse engineer, decompile or disassemble any part of the SaaS. Service Provider further agrees that neither Service Provider nor any Authorized User shall store (except as permitted under this Agreement for retrieval and display purposes only), copy, reproduce, retransmit, disseminate, sublicense, sell, distribute, publish, broadcast, circulate, create derivative works (including, without limitation, trading algorithms), test algorithms in conjunction with, or distribute by any means the SaaS in whole or in part to anyone, including, but not limited to, other employees of Service Provider, without Licensor’s express prior written consent; provided, however, that Authorized Users may on an occasional basis in the normal course of business include limited portions of the SaaS (a) in oral and (with proper attribution to the respective Service) non-electronic written communications with clients and other employees, and (b) in email and instant messaging communications with other employees and/or securities professionals. Without limiting the foregoing, under no circumstances shall distribution under this Section by Service Provider be permitted if such distribution may be viewed as a substitute for a subscription to the SaaS itself. Service Provider agrees that when using the SaaS in this way, the facts, content, and intent of the SaaS will not be changed in form or in spirit or otherwise in any way be prejudicial to the integrity of the service or Licensor. Other than as expressly set forth in this Agreement, no license or intellectual property rights owned or licensed by Licensor are granted to Service Provider, and all such rights are hereby expressly reserved.
13. General Provisions
13.1. Notices. All notices under the Agreement must be in writing. Notices will be deemed received by the Party to whom the notice is addressed two (2) working days from posting.
13.2. Independent Contractors. The relationship between Licensor and Service Provider is strictly that of independent contractors.
13.3. Governing Law; Venue. The validity, construction and interpretation of the Agreement will be governed by the internal laws of the State of California, excluding its conflict of laws provisions. The Parties consent to the exclusive jurisdiction and venue of the courts located in Santa Clara, California, USA for any action arising hereunder.
13.4. Compliance with Laws. Service Provider shall comply with Compliance Rules. Service Provider represents and warrants on a continuing basis that: (i) neither it nor anyone acting on its behalf has made or shall make any payments (or promises of payments) or otherwise give anything of value (directly or indirectly) to any entity with whom it is conducting business on behalf of Licensor in an attempt to obtain or retain business or otherwise obtain an improper advantage; and, (ii) neither it nor anyone acting on its behalf is a government official (as defined by anti-corruption laws) who may be in a position in his/her role to influence the business of Service Provider as it relates to that government. Service Provider as it relates to this section also includes Service Provider’s owners, directors, officers, employees or its agents. In the event that Licensor concludes in its sole discretion that Service Provider has failed to meet its obligations under this section, Licensor may immediately terminate this Agreement by written notice to Service Provider.
13.5. Survival of Terms. The following provisions will survive and remain in effect after termination of this Agreement: 1, 2.2, 2.3, 2.4, 3.5, 4, 8, 9.2, 10, 11 and 13.
13.6. Assignment. The Agreement may not be assigned by Service Provider without the prior written consent of Licensor, such consent not to be unreasonably withheld.
13.7. Export Requirements. The SaaS and related software are each subject to export laws and controls of the United States of America and import controls of any other country in which such information may be used. Service Provider agrees to export, re-export or import the SaaS and related software only in compliance with such laws and controls.
13.8. Publicity. Licensor may use Service Provider’s name and logo in Licensor’s marketing materials, including use on Licensor’s website and in press releases, subject to Service Provider’s prior approval of the content of any such release.
13.9. Service Provider Data. If Service Provider transfers any personal data to Licensor as a requirement in connection with the SaaS, then Service Provider represents that (i) it is duly authorized to provide personal data to Licensor and it does so lawfully in compliance with relevant legislation, and (ii) Service Provider accepts that Licensor does not allow the recording of any sensitive personal data in its products, and has no provision to identify, distinguish, or detect that personal information has been introduced into its products, consequently Licensor assumes no responsibility for the safeguarding of personal information beyond best commercial practices to secure all data stored within its products, including but not limited to data encryption at rest, data encryption in motion, and strict password authentication and authorization into the system and (iii) Licensor and any entity within the Licensor group of companies or its subcontractors can use such data for the purposes of performing its obligations and (iv) Licensor may disclose such data to any Licensor entity and its subcontractors for this purpose and may transfer such data to countries outside of the country of origin. Licensor is Safe Harbor certified and the Licensor entities have committed to comply with relevant data protection/privacy legislation.
13.10. Severability. If any provision or portion thereof of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability. All other provisions and portions of them hereunder will not be affected by the invalidity and will be valid and enforced to the fullest extent permitted by law.
13.11. No Waiver of Rights. No delay or omission by either Party to exercise any right or power it has under the Agreement will be construed as a waiver of such right or power. All waivers must be in writing and signed by the Party waiving its rights.
13.12. Injunctive Relief. If Service Provider breaches Section 2 of this Agreement, Licensor will be entitled, in addition to any other rights available under this Agreement or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Service Provider acknowledges and agrees to not contest such application.
13.13. Third Party Software. Any third-party software contained in the SaaS shall be subject to the terms, conditions and notices governing its use that are found in the Documentation accompanying the SaaS, and/or at https://serviceaide.com/customer-support and/or presented to, and accepted by, Service Provider during the initiation of the SaaS. Service Provider shall not settle any third-party claims arising from Licensor’s Intellectual Property without Licensor’s prior written consent.
13.14. Entire Agreement. This Agreement constitutes the entire agreement between Licensor and Service Provider with respect to the subject matter hereof. This Agreement supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such subject matter.
13.15. No Oral Modification. No modification of this Agreement will be effective unless contained in writing and signed by an authorized representative of each party. No term or condition contained in Service Provider’s purchase order or similar document will apply unless agreed upon in an express written amendment to this Agreement, even if Licensor has accepted the order set forth in such purchase order, and all such terms or conditions are otherwise hereby expressly rejected by Licensor.
13.16. Conflict with Order Form. In the event of a conflict between these Terms and
the Order Form, the Order Form will govern.
13.17. Force Majeure. Any failure or delay by Licensor in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, pandemics, epidemics, local disease outbreaks, public health emergencies, communicable diseases, and quarantines, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States or any nation where the obligations under this Agreement are to be executed, strikes, supplier and If you have any questions or concerns about our policy please contact us at info@Serviceaide.com
