Software as a Service Agreement
This Software as a Service Agreement is made between Subscriber (You), and Vendor (producer of the software).
Grant of License to Access and Use Service.
Vendor hereby grants to Subscriber, including to all Subscriber's Authorized Users, a non-exclusive, non-sublicensable, non-assignable, royalty-free, and worldwide license to access and use the software (the "Service") solely for Subscriber's internal business operations (the "[DELIVERABLE]"), according to Vendor's terms and policies listed in this agreement.
Support is provided at Vendor's own expense, Vendor shall provide Subscriber with electronic support during Vendor's normal business hours in order to help Subscriber locate and correct problems with the Service and any related software.
Subscriber shall pay Vendor the agreed upon monthly subscription fee for the use of Vendor's software provided under this agreement.
Subscriber shall pay the Subscription Fee to Vendor, due on the first day of each month, in immediately available funds. If payment is not made during the grace period of up to 30 days from its due date, Subscriber bear the full responsibility of any disruption of service that may happen as a result.
Payment amounts under this agreement do not include Taxes, and Subscriber shall pay all Taxes applicable to payments between the parties under this agreement.
Vendor shall provide the Service to Subscriber with a System Availability of at least % during each calendar month.
Vendor may take the Service offline for scheduled maintenances that it provides Subscriber the schedule for in writing on the Vendor's website (though this scheduled maintenance time will not count as System Availability).
System Availability Definition
Percentage of Minutes per Month.
"System Availability" means the percentage of minutes in a month that the key components of the Service are operational.
Not Included in "System Availability.
"System Availability" will not include any minutes of downtime resulting from scheduled maintenance, events of force majeure, malicious attacks on the system, issues associated with Subscriber's computing devices, local area networks or internet service provider connections, or Vendor's inability to deliver services because of Subscriber's acts or omissions.
Subscriber shall implement reasonable safeguards to prevent unauthorized access to, use of, or disclosure of the disclosing party's Data.
On Subscriber's request and payment of $ per copy, Vendor shall deliver to Subscriber a full back-up of Subscriber's Data, in an SQL format.
Vendor may anonymously compile statistical information related to the performance of the Service for purposes of improving the Service service, but only if such information does not identify the data as Subscriber's or otherwise include Subscriber's name.
The parties are corporations incorporated and existing under the laws of the jurisdictions of their respective incorporation.
Authority and Capacity.
The parties have the authority and capacity to enter into this agreement.
Execution and Delivery.
The parties have duly executed and delivered this agreement.
This agreement constitutes a legal, valid, and binding obligation, enforceable against the parties according to its terms.
Neither party is under any restriction or obligation that the party could reasonably expect might affect the party's performance of its obligations under this agreement.
Neither party's execution, delivery, or performance of its obligations under this agreement will breach or result in a default under its articles, bylaws, or any unanimous shareholders agreement, any Law to which it is subject, any judgment, Order, or decree of any Governmental Authority to which it is subject, or any agreement to which it is a party or by which it is bound. Permits, Consents, and Other Authorizations. Each party holds all Permits and other authorizations necessary to own, lease, and operate its properties, and conduct its business as it is now carried on.
No Disputes or Proceedings.
[Except as disclosed in the parties respective Disclosure Schedules] There are no Legal Proceedings pending, threatened, or foreseeable against either party, which would affect that party's ability to complete its obligations under this agreement.
Neither party has taken or authorized any proceedings related to that party's bankruptcy, insolvency, liquidation, dissolution, or winding up.
IP Disclosure Schedule.
Vendor's Disclosure Schedule lists any exceptions to its representations.
[Except as disclosed in Vendor's Disclosure Schedule] Vendor is the exclusive legal owner of the Service, including all Intellectual Property included in the Service and granted under the [DELIVERABLE].
Status of Licensed Intellectual Property.
[Except as disclosed in Vendor's Disclosure Schedule]Vendor has properly registered and maintained all Intellectual Property included in the Service and granted under the [DELIVERABLE] and paid all applicable maintenance and renewal fees.
No Conflicting Grant.
[Except as disclosed in Vendor's Disclosure Schedule]Vendor has not granted and is not obligated to grant any license to a third party that would conflict with the [DELIVERABLE].
[Except as disclosed in Vendor's Disclosure Schedule]The Service does not infringe the Intellectual Property rights or other proprietary rights of any third party.
No Third Party infringement.
[Except as disclosed in Vendor's Disclosure Schedule] To Vendor's Knowledge, no third party is infringing the Service.
Subscriber shall be responsible for obtaining and maintaining all computer hardware, software, and communications equipment needed to internally access the Service, and paying all third party access charges incurred while using the Service.
Subscriber shall be responsible for implementing, maintaining, and updating all necessary and proper procedures and software for safeguarding against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties (collectively "Viruses").
Subscriber's Use of Services
Subscriber shall abide by all local and international Laws and regulations applicable to its use of the Service, use the Service only for legal purposes, and comply with all regulations, policies and procedures of networks connected to the SaaS.
Subscriber will not upload or distribute any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Service, modify, disassemble, decompile or reverse engineer the Service, probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Service, take any action that imposes an unreasonably or disproportionately large load on the sites, servers, or networks connected to the Service, copy or reproduce the Service, access or use any other clients' or their users' data through the Service, maliciously reduce or impair the accessibility of the Service, use the service to post, promote, or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, hateful, or otherwise objectionable material, or transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability.
The parties shall continue to be bound by the terms of the non-disclosure agreement between the parties.
No Representation by Vendor
Vendor makes no representation that the Service is appropriate or available for use outside of the United States.
Subscriber represents and that it is not located in, under the control of, or a national or resident of any country to which the United States has embargoed the import or export of goods, on the United States Treasury Department's List of Specially Designated Nationals or United States Commerce Department's Table of Deny Orders.
This agreement begins as soon as Subscriber signs up for the Vendor's service, and will continue until terminated (the "Term").
Ownership of Intellectual Property
Vendor will retain all interest in and to the Services, including all documentation, modifications, improvements, upgrades, derivative words, and all other Intellectual Property rights in connection with the Service, including Vendor's name, logos. and trademarks reproduced through the Service.
Termination on Notice
Either party may terminate this agreement for any reason on 5 business days' notice to the other party.
Termination for Material Breach
Each party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if the other party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and the failure, inaccuracy, or breach continues for a period of 30 Business Days' after the injured party delivers notice to the breaching party reasonably detailing the breach.
Termination for Failure to Pay
Vendor may terminate this agreement with immediate effect by delivering notice of the termination to Subscriber if Subscriber fails to pay the monthly Subscription Fee on time 3 times over any 12 month period.
Effect of Termination
Vendor shall refund to Subscriber any prepaid Subscription Fees covering the remainder of the term of all subscriptions after the effective date of termination.
Pay Outstanding Amounts
Subscriber shall pay to Vendor all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination.
Discontinuance of Use
Subscriber shall cease all use of the Service upon the effective date of the termination.
Recovery of Data
Subscriber will have  days from the date of termination to retrieve any of data that Subscriber wishes to keep.
Indemnification by Vendor.
Indemnification for Infringement Claims
Subject to paragraph [EXCLUSIONS], Vendor (as an indemnifying party) shall indemnify Subscriber (as an indemnified party) against all losses and expenses arising out of any proceeding brought by a third party, and arising out of a claim that the Services infringe the third party's Intellectual Property rights.
Qualifications for Indemnification
Vendor will be required indemnify Subscriber under paragraph [INDEMNIFICATION FOR INFRINGEMENT CLAIMS] only if Subscriber's use of the Services complies with this agreement and all documentation related to the Services, the infringement was not caused by Subscriber modifying or altering the Services or documentation related to the Services, unless Vendor consented to the modification or alteration in writing, and the infringement was not caused by Subscriber combining the Services with products not supplied by Vendor, unless Vendor consented to the combination in writing.
Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses arising out of any proceeding brought by either a third party or an indemnified party, and arising out of the indemnifying party's willful misconduct or gross negligence.
Notice and Failure to Notify
Before bringing a claim for indemnification, the indemnified party shall notify the indemnifying party of the indemnifiable proceeding, and deliver to the indemnifying party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.
Failure to Notify
If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party's failure.
The parties' right to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this section [INDEMNIFICATION].
Limitation on Liability
Mutual Limit on Liability
Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this agreement.
Vendor's liability under this agreement will not exceed the fees paid by Subscriber under this agreement for 1 term of the subscription plan for which the Subscriber is currently subscribed upon which the related claim arose. If Subscriber is currently signed up for the monthly subscription plan, the maximum amount the Vendor is only liable for is the monthly fee. If the Subscriber is signed up for the annual subscription plan, the Vendor is only liable for refunding the annual plan subscription fee.
The parties intend that this agreement, together with all attachments, schedules, exhibits, and other documents that both are referenced in this agreement and refer to this agreement, represent the final expression of the parties' intent relating to the subject matter of this agreement, contain all the terms the parties agreed to relating to the subject matter, and replace all of the parties' previous discussions, understandings, and agreements relating to the subject matter of this agreement.
Vendor may amend the terms and conditions of this agreement at any time by reasonable notice, including without limitation by posting revised terms on its website.
Neither party may assign this agreement or any of their rights or obligations under this agreement without the other party's written consent.
Method of Notice
The parties shall give all notices and communications between the parties in writing by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][, or (v) electronic mail] to the party's address specified in this agreement, or to the address that a party has notified to be that party's address for the purposes of this section.
Receipt of Notice
A notice given under this agreement will be effective on the other party's receipt of it, or if mailed, the earlier of the other party's receipt of it and the [fifth] business day after mailing it.
This agreement shall be governed, construed, and enforced in accordance with the laws of the State of California, without regard to its conflict of laws rules.
If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
Neither party's failure or neglect to enforce any rights under this agreement will be deemed to be a waiver of that party's rights.
A waiver or extension is only effective if it is in writing and signed by the party granting it.
No General Waivers
A party's failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.
No Course of Dealing
No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.
Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.
1. Response and Resolution Goals
1.1 Severity 1:
The Production system / application is down, seriously impacted and there is no reasonable workaround currently.
Upon confirmation of receipt, the Company will begin continuous work on the issue, and once the issue is reproducible or once we have identified the Software defect, the Company support will provide reasonable effort for workaround or solution within reasonable time.
1.2 Severity 2:
The system or application is seriously affected. The issue is not critical and does not comply with the Severity 1 conditions. There is no workaround currently available or the workaround is cumbersome to use.
The Company will work during normal business hours to provide reasonable effort for workaround or solution within reasonable time, once the issue is reproducible.
1.3 Severity 3:
The system or application is moderately affected. The issue is not critical and the system has not failed. The issue has been identified and does not hinder normal operation, or the situation may be temporarily circumvented using an available workaround.
The Company will work during normal business hours to provide reasonable effort for workaround or solution within reasonable time, once the issue is reproducible.
1.4 Severity 4:
The Company will seek during normal business hours to provide a solution in future releases of the Service.