These Terms are entered into by the ServiceAide entity (“SA”) and Service Provider 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 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 Customer.
1.4. “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 ransactions, and international accounting standards. 1.5. “Service Provider Data” means information submitted by, or entered by an Authorized User or automatically uploaded through the use of the SaaS including, but not limited to, account information, network information, user ids and usage details.
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. “Documentation” means any published technical manuals, including any updates thereto, relating to the use of the SaaS made generally available by SA.
1.8. “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.
1.9. “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) Customer’s configuration, scripting, coding drafted by Customer without SA’s authorization or knowledge; (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. “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.
1.11. “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 SA Order Form / Quote for SaaS made available to Customer by SA and/or for consulting services.
1.14. “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.
1.15. “Scheduled Downtime” means planned downtime of which SA has notified Service Provider at least 72 hours in advance.
1.16. “Service Credit” means in the event that SA is unable to meet the stated level of Uptime in any month, Service Provider must submit a request for credit, and SA will provide to Service Provider a credit against future service fees in the manner and to the extent described below.
1.17. “Service Provider” means the entity identified in the applicable Order Form which incorporates this Agreement.
1.18. “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.
1.19. “Subscription Term” means the duration identified on an Order Form, during which the SaaS will be provided and any subsequent renewals.
1.20. “Uptime” means the time in which the SaaS are available for access and use through the SaaS, but subject to the Exclusions described herein.
2.1. Right to Use the SaaS. Subject to these terms and conditions and the applicable Order Form and payment of applicable fees, during the Subscription Term, SA grants to Service Provider a non-exclusive, non- transferable right which Service Provider cannot sub- license, 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 up to the Authorized Use Limitation. Service Provider agrees it shall be liable for each Authorized User’s compliance with the terms of this Agreement.
2.2. Restrictions. Service Provider 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 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, (c) make commercially reasonable efforts to secure and (d) not make any representations, warranties or create obligations or liabilities on behalf of SA. Service Provider agrees not to provide any representation or statement regarding the compliance of the SaaS or of SA to any Public Sector End User certification, legal requirement or any other representations without the prior written consent of SA.
2.4. Ownership. SA 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 SA. 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 Service Provider under the same terms as the SaaS.
3. Fees, Duration & Payment
3.1. Fees. The fees payable by Service Provider to SA are those stated in each Order Form.
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 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 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. SA 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 Terms. The subscription to the SaaS will automatically renew for additional Subscription Term(s) of equal 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 notice of non-renewal 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. 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 SA’s net income.
3.7. Audit. SA 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 SA, Service Provider shall be invoiced for and shall pay such fees in accordance with Section.
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 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. Confidential Information may, without breach of clause 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
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.support.SA.com; however, SA 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 SA 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. SA 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, 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 SA software and do not include any customization or development activity that impacts any of the full features and benefits and underlying source code of the SA software. Payment of license fees and/or support fees for SA software is not contingent upon Customer receiving the consulting services.
6. Service Provider Data/Security
6.2. Security. SA 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. SA uses commercially reasonable practices designed to enable the backup of the Service Provider 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, 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 SA’s negligence or intentional misconduct, in which case SA’s commercially reasonable efforts to restore the Service Provider Data shall be limited to the most recent back-up of the Service Provider Data.
7.1. 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 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 2 days credit of SaaS fees, based on the monthly SaaS fees paid. In the event of a major default, Service Provider is entitled to 5 days credit of SaaS fees, based on the monthly SaaS fees paid. Any 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 Section 7.2, the credits issued under this Section will be the Service Provider’s sole and exclusive remedy for the default event giving rise to the 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), 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 SA 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 Section 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 SA 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 SA 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, SA 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 SA 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, SA 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 SA Confidential Information in its possession.
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, 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 thenprevailing policies. If it is established that SA has breached either of the warranties above, SA’s only obligation and Service Provider’s 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 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 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 SERVICE PROVIDERS’ REQUIREMENTS OR THAT USE OF THE SAAS AND RELATED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
10. Limitation of Liability
10.1. EXCEPT FOR BREACHES OF SECTION 2 BY SERVICE PROVIDER OR SECTION 4 BY EITHER PARTY, (I) 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 INCIDENTAL, INDIRECT, PUNITIVE, EXAMPLARY, SPECIAL, CONSEQUENTIAL OR UNFORESEEABLE LOSS, DAMAGE OR EXPENSE, 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, AND (II) 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 AND OWED DURING THE THEN CURRENT SUBSCRIPTION TERM FOR SAAS OR UNDER THE APPLICABLE TRANSACTION DOCUMENT FOR CONSULTING SERVICES.
11. General Provisions
11.1. 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.
11.2. Independent Contractors. The relationship between SA and Service Provider is strictly that of independent contractors.
11.3. 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.
11.4. 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 SA 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 SA concludes in its sole discretion that Service Provider has failed to meet its obligations under this section, SA may immediately terminate this Agreement by written notice to Service Provider.
11.5. 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 and 11.
11.6. Assignment. The Agreement may not be assigned by Service Provider without the prior written consent of SA, such consent not to be unreasonably withheld.
11.7. 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.
11.8. Service Provider Data. If Service Provider transfers any personal data to SA as a requirement in connection with the SaaS, then Service Provider represents that (i) it is duly authorized to provide personal data to SA and it does so lawfully in compliance with relevant legislation, and (ii) Service Provider 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.
11.9. Publicity. SA may use Service Provider’s name and logo in SA’s marketing materials, including use on SA’s website and in press releases, subject to Service Provider’s prior approval of the content of any such release.
11.10. Miscellaneous. If any provision of the Agreement is held to be contrary to law, then the remaining provisions of this Agreement will remain in full force and effect. No delay or omission by either party to exercise any right or power it has under this 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 Software, 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 SA’s Intellectual Property without SA’s prior written consent. This Agreement constitutes the entire agreement between SA 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. 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 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.