Terms and Conditions
1. SAAS SERVICES
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to make the Services available to Customer (Licensed End Users up to the Service Capacity) in accordance with the terms (and subject to the conditions) of this Agreement. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer, including without limitation, any and all Licensed End Users, will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company pursuant to the terms of this Agreement, or authorized within the Services); use the Services or any Software for time-sharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority and/or other applicable laws and regulations.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes, without limitation, non-public technical and non-technical information regarding features, functionality and performance of the Service or non-public information about the Company’s business. Proprietary Information of Customer includes, without limitation, non-public data provided by Customer (including its Licensed End Users) to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possess ion or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law or legal process.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Services, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary contained in this Agreement, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Service Fee”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Service Fees or applicable charges and to institute new charges and Service Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than thirty (30) days after the mailing date of Company’s invoice containing any alleged errors. Inquiries should be directed to Company’s customer support department.
4.2 Unless otherwise specified in the Statement of Work, Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. All unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection (including, without limitation, reasonable attorneys fees) and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. In the event any amounts owed by Customer pursuant to the terms of this Agreement are not received by Company when due, Company shall have the right to suspend any and all Services upon written notice to Customer until any and all such amounts are paid in full. All remedies contained herein shall be in addition to (and not in lieu of) any and all remedies available to Company pursuant to this Agreement and/or applicable law.
5. TERM; TERMINATION; AND SURVIVAL
5.1 Subject to earlier termination as provided below, this Agreement shall begin as of the Effective Date and shall expire as of the earlier of: (a) the completion of the Initial Service Term (as defined in the Order Form); or (b) the Cancelation Date (as defined in the Statement of Work). The parties shall have the right to renew this Agreement for additional 12 month periods upon their written agreement prior to the expiration of the Initial Service Term or the then-current Services period (collectively, the “Term”).
5.2 In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured during the thirty (30) day period. Customer will pay in full for the Services up to and including the termination date. Upon the termination or expiration of this Agreement, the following terms will survive: Sections 2, 3, 4, 5, 6, 8, and 9.
6. WARRANTY AND DISCLAIMER
Company shall use its reasonable efforts to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Company shall hold Customer harmless from liability to third parties resulting directly and exclusively from Company’s knowing infringement of any United States patent or any copyright or knowing misappropriation of any trade secret with respect to the Services provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO CASE SHALL COMPANY (OR ANY OF ITS SUPPLIERS, AFFILIATES, PARTNERS OR ANY OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, OR CONTRACTORS) BE LIABLE TO ANY CUSTOMER OR ANY THIRD PARTIES FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, OR SPECIAL DAMAGES PURSUANT TO THIS AGREEMENT OR THE SERVICES TO BE RENDERED BY COMPANY HEREUNDER; AND (II) IN NO EVENT WILL THE TOTAL AGGREGATE MAXIMUM LIABILITY INCURRED BY COMPANY (AND COMPANY’S SUPPLIERS, AFFILIATES, PARTNERS OR ANY OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, OR CONTRACTORS) PURSUANT TO THE TERMS OF THIS AGREEMENT ACTUALLY EXCEED THE GREATER OF: (A) THE DOLLAR AMOUNT ACTUALLY PAID TO CUSTOMER PURSUANT TO ANY APPLICABLE INSURANCE POLICY MAINTAINED BY COMPANY; OR (B) THE AMOUNT ACTUALLY PAID TO COMPANY BY CUSTOMER AS A FEE IN CONNECTION WITH THE SERVICES PURSUANT TO A STATEMENT OF WORK UNDER WHICH THE CLAIM ACTUALLY AROSE.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. It is expressly acknowledged and agreed to by the parties hereto that Company is an independent contractor and nothing in this Agreement is intended or shall be construed to create an employer/employee relationship, or to allow Customer to exercise control or direction over the manner or method by which Company performs the services which are the subject matter of this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. Each of the parties represents to the other party that it has the power to enter in to this Agreement and that the same shall not conflict with any other written obligation entered into by such party and that each party’s signatory has the proper authority to enter into this Agreement on behalf of such party. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New York with out regard to its conflict of laws provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in New York County, New York and each party consents to the jurisdiction thereof. The parties acknowledge that each party has reviewed this Agreement and that normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. This Agreement may be executed in counterparts, all of which shall constitute one single agreement between the parties hereto. This Agreement may be executed and delivered by facsimile or by email in portable document format (.pdf), and delivery of the signature page by either such method will be deemed to have the same effect as if the original signature had been delivered to the other party.