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:

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.
‍

2.1. 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;
(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.

3.1. 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.

 4.1. 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.

5.1. 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.

6.1. 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.

7.1. 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.[2497-010/4090924]

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.

8.1. 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.

9.1. 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[2497-010/4090924]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.

10.1. 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[2497-010/4090924]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.

11.1. 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.

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.

13.1. 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.

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.