Customer SaaS Terms
These Terms are entered into by the SA entity (“SA”) and Customer identified on the applicable Order Form and shall be effective from the date specified in the Order Form.
1.1. “Agreement” means collectively, these Terms and each individual Order Form.
1.2. “Authorized Use Limitation” means the limitation on usage of SaaS measured by the metric specified on the Order.
1.3. “Authorized Users” means Customer, its employees and independent contractors that access and use SaaS 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 Customer.
1.4. “Consulting Services” means those consultancy services and/or education services provided by SA as described in an Order Form or statement of work.
1.5. “Customer” means the entity identified in the applicable Order Form.
1.6. “Customer 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 SA.
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 Customer networks or domain name server issues; (iv) outages due to Customer’s configuration, scripting, coding drafted by Customer without SA’s authorization; (v) internet outages; (vi) Customer outages requested by Customer; (vii) Customer changes to its environment which hinder SaaS production and (viii) inability for Customer to log in to SaaS service because of dependence on non SA provided services or components (eg. Lightweight Directory Access Protocol (LDAP) in customer 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 SA’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 SA Order Form / Quote for SaaS made available to Customer by SA and/or for Consulting Services.
1.12. “SaaS” means the online version of the SA software and or type of online service defined in the Order Form and made available to Authorized Users via a website.
1.13. “Scheduled Downtime” means planned downtime of which SA has notified Customer at least 72 hours in advance.
1.14. “Service Credit” means in the event that SA is unable to meet the stated level of Uptime in any month, Customer must submit a request for credit, and SA will provide to Customer a credit against future SaaS fees in the manner and to the extent described below.
1.15. “Subscription Term” means the duration identified on an Order Form during which the SaaS will be provided, and any subsequent renewals.
1.16. “Uptime” means the time the SaaS is available for access and use, but subject to the Exclusions described herein.
2.1. Right to Use the SaaS. Subject to the terms of the Agreement and payment of applicable fees, during the Subscription Term, SA grants to Customer a non-exclusive, non-transferable right which Customer cannot sub-license, for Customer and its Authorized Users to access and use the SaaS for Customer’s internal business purposes up to the Authorized Use Limitation and always in accordance with the Documentation.
2.2. Restrictions. Customer must not directly or indirectly (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. SA 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 Customer are reserved by SA 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, SA shall retain all rights, title and license in such work product or code provided that it shall be licensed to Customer under the same terms as the SaaS.
3. Fees, Duration & Payment
3.1. Fees. The fees payable by Customer to SA are those stated in each Order Form.
3.2. Reports. Customer is responsible for preparing and submitting monthly reports that shall include information detailing Customer’s use of the SaaS and any metrics under which the SaaS are measured in the Order Form. Customer shall submit each report to SA on the fifteenth day of each calendar month. Failure to comply with this Section 3 shall be deemed a material breach of this Agreement.
3.3. Overage. If Customer 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. SA shall issue an invoice to Customer unless Customer 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 Terms. 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 SA price on the date of renewal unless either party gives the other party written notice of nonrenewal at least ninety (90) days prior to the end of the relevant Subscription Term.
3.5. Payment. Payments are due within 30 days from the date of SA’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. Customer 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 SA’s net income.
3.7. Audit. SA may audit Customer’s use of the SaaS on reasonable written notice and during working hours. If an audit reveals that Customer has underpaid fees to SA, Customer shall be invoiced for and shall pay such fees in accordance with Section 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 Section 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 Section 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 here under, 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. SA 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, SA 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. SA may provide Consulting Services, including training, education or packaged work product components to Customer 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, SA’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 Customer receiving the Consulting Services.
6. Customer Data/Security
6.2. Security. SA uses commercially reasonable practices, including encryption and firewalls, designed to enable Customer Data to be disclosed only to Customer and Authorized Users.
6.3. Backup. SA uses commercially reasonable practices designed to enable the backup of the Customer Data consistent with SA’s storage policies and procedures, applicable to each twenty four (24) hour period.
6.4. Restoration of Data. SA will not be responsible for any unauthorized access to or alteration, theft or destruction of the Customer Data through accident, fraudulent means or devices, unless such access, alteration, theft or destruction is caused as a direct result of SA’s negligence or intentional misconduct, in which case SA’s commercially reasonable efforts to restore the Customer Data shall be limited to the most recent back-up of the Customer Data.
7.1. Availability. SA uses commercially reasonable efforts to maintain availability of the SaaS twentyfour (24) hours per day, seven (7) days per week, less Scheduled Downtime, in accordance with SA’s policies. SA 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, Customer is entitled to a Service Credit equal to 2 days of SaaS fees, based on the monthly SaaS fees paid. In the event of a major default, Customer is entitled to a Service Credit equal to 5 days credit of SaaS fees, based on the monthly SaaS fees paid. Any Service Credits issued to Customer will be applied towards the next billing period applicable to Customer 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 Customer’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 3 month period of time, upon 30 days written notice to SA (which notice shall be received by SA within ten (10) business days of the third unexcused major default), Customer may terminate this Agreement without incurring any additional charges or termination fees. In the event of such termination the Customer 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 SA shall relieve Customer 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 Customer’s sole and exclusive remedy under this Agreement and any Order Form(s) arising here under, and SA shall have no further liability arising out of this Agreement and any Order Form(s) arising here under.
7.3. Downtime. Scheduled Downtime and unscheduled interruptions may occur, and SA does not warrant uninterrupted availability of the SaaS. Normal software or hardware upgrades are scheduled for nights and weekends, Pacific Time, and intended to cause a amount of interruption to SaaS . In the event that an unscheduled occurs, SA will use commercially efforts to resolve the problem and the SaaS to availability as soon as . During such Scheduled Downtime and unscheduled interruptions, Customer may be unable to transmit and receive data through the SaaS. Customer agrees to cooperate with SA during the Scheduled Downtime and unscheduled interruptions if assistance from Customer 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, SA may also temporarily restrict Customer’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 non breaching 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 here under shall immediately terminate and Customer shall return or destroy all SA Confidential Information in its possession.
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, SA warrants that (a) when the SaaS are used in an operating environment stated in the Documentation as supported by SA, 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 SA’s then-prevailing policies. If it is established that SA has breached either of warranties above, SA’s only obligation and exclusive remedy shall be for SA to, at its option, (1) use reasonable efforts to cure the defect in the SaaS, or re-perform the Consulting Services, as ; or (2) terminate the applicable and provide a refund of pre-paid, fees calculated against the remainder of Subscription Term. This warranty and the offered are applicable only if Customer the alleged breach with reasonable in writing within thirty (30) days from its .
9.2. Disclaimer. THE ABOVE WARRANTIES ARE SA’S ONLY WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, TO THE EXTENT PERMITTED BY LAW. SA DOES NOT WARRANT THAT SA’S SAAS, RELATED SOFTWARE CONSULTING SERVICES OR MAINTENANCE WILL MEET CUSTOMERS’ 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.
10.1. SA will indemnify, defend and/or, at its option, settle any third party claims that the results of any Consultancy Services or Customers use of the SaaS and/or related SA software pursuant to the Agreement infringes any valid US patent, or copyright within the jurisdictions where Customer is authorized to access the SaaS. SA may, at its option and expense take action to: (i) procure for Customer the right to continue to use the SaaS and/or Consultancy Services ; (ii) repair, modify or replace the SaaS and/or Consultancy Services so that it is no longer infringing; or (iii) provide a pro-rated refund of the fees paid for the SaaS and/or Consultancy Services which gave rise to the indemnity calculated against the remainder of the Subscription Term from the date it is established that SA is notified of the third party claim. The above indemnity is contingent upon: (i) Customer providing prompt notice of any claim of infringement and assistance in the defense thereof, (ii) SA’s sole right to control the defense or settlement of any such claim, and (iii) Customer not taking any actions or failing to take actions that hinder the defense or settlement process as reasonably directed by the SA.
11. Limitation of Liability
11.1. Neither party excludes or limits its liability for damages caused for death or personal injury caused by the negligence or willful default of that party.
11.2. Except for breach of title, infringement of SA’s, or its licensors’ intellectual property rights or breach of the obligations of confidentiality, and subject to subsections 11.1, 11.3 and 11.4 of this Section 11, each party’s liability to the other under the Agreement, for direct damages, loss, refunds, or liability for any cause whatsoever and regardless of the form of action, whether contractual or non contractual, shall be limited to a maximum of the fees paid or owed for the then current Subscription Term.
11.3. Each party’s liability for damage to tangible personal or real property due to the negligence of that party shall be limited in aggregate to the sum equivalent to $100,000 per event or series of related events.
11.4. Except for infringement of SA’s or its licensors’ intellectual property rights by Customer and subject to Section 11.1, in no event shall either party be liable to the other party or any other party, whether in contract or tort, or otherwise for any indirect loss, damage or expense, including but not limited to loss of profits, loss of business, loss of opportunity, loss or corruption of data, however arising, even if advised of the possibility of such loss or damages being incurred.
11.5. The remedies provided in the Agreement are the exclusive remedies of the Parties.
12. General Provisions
12.1. 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.
12.2. Independent Contractors. The relationship between SA and Customer is strictly that of independent contractors.
12.3. 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 here under.
12.4. 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 12.
12.5. Assignment. The Agreement may not be assigned by Customer without the prior written consent of SA, consent not to be unreasonably withheld.
12.6. 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. Customer agrees to export, re-export or import the SaaS or related software only in compliance with such laws and controls.
12.7. Publicity. SA may use Customer’s name and logo in SA’s marketing materials, including use on SA’s website and in press releases, subject to Customer’s prior approval of the content of any such release.
12.8. Customer Data. If Customer transfers any personal data to SA as a requirement in connection with the SaaS, then Customer represents that (i) it is duly authorized to provide personal data to SA and it does so lawfully in compliance with relevant legislation, (ii) Customer accepts that SA 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 SA 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) SA and any entity within the SA group of companies or its subcontractors can use such data for the purposes of performing its obligations and (iv) SA may disclose such data to any SA entity and its subcontractors for this purpose and may transfer such data to countries outside of the country of origin. SA, Inc. is Safe Harbor certified and the SA entities have committed to comply with relevant data protection/privacy legislation.
12.9. Miscellaneous. If any provision of the Agreement is held to be contrary to law, then the remaining provisions of the Agreement will remain in full force and effect. 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. 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, Customer during the initiation of the SaaS. The Agreement constitutes the entire agreement between SA and Customer 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. 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 Customer’s purchase order or similar document will apply unless agreed upon in an express written amendment to the Agreement, even if SA has accepted the order set forth in such purchase order, and all such terms or conditions are otherwise hereby expressly rejected by SA. In the event of a conflict between these Terms and the Order Form, the Order Form will govern.