Software As A Service Terms and Conditions
These ‘Software as a Service’ Terms and Conditions (“SaaS Terms”) apply to the agreement entered into between the Customer and the Service Provider and set forth the terms and
conditions under which Service Provider will provide the Customer with access to certain applications (“Application(s)”) and user documentation that Service Provider makes generally available in hard copy or electronic form to its general
customer base in conjunction with the subscription of such Applications ("Documentation"). The Applications and the Documentation will
hereinafter collectively be referred to as the “Software.”
- SUBSCRIPTION GRANT AND RIGHT OF USE
- Subscription Grant. Subject to all limitations and
restrictions contained herein, Service Provider
grants Customer a subscription, software as a service (‘SaaS’),
nonexclusive, and nontransferable right to access and
operate the object code form of Applications (and use its
Documentation) as hosted by Service Provider as described (“Use”) and solely to perform those functions
described in the Documentation. For clarity, an “Application”
means Service Provider’s proprietary software that is
specifically subscribed to Customer.
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Use. Customer will have a limited right to Use the
Application solely for its internal business purposes, to
perform the functions described in the Documentation.
Customer shall not allow any website that is not fully owned by
Customer to frame, syndicate, distribute, replicate, or copy
any portion of Customer’s web site that provides direct or
indirect access to the Application. Customer shall not allow
any website, that is not fully owned by Customer, to frame,
syndicate, distribute, replicate, or copy any portion of
Customer’s web site that provides direct or indirect access
to the Software. Unless otherwise expressly permitted subject to Section 1.5, Customer shall not permit
any subsidiaries, affiliated companies, or third parties to
access the Software.
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Subscription Type. The license model for the
Software is set forth as subscription based and described in the
SaaS
Addendum
. Unless otherwise
specifically stated, the type of license granted is a
Pay As You Go Subscription. A “Pay As You Go Subscription”
means that the Application subscribed to may be Used by users of the organization and the subscriber is billed for the billable resources utilized.
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Additional Restrictions. In no event will
Customer disassemble, decompile, or reverse engineer the Application or Confidential Information (as defined herein) or
permit others to do so. Disassembling, decompiling, and
reverse engineering include, without limitation: (i) converting
the Application from a machine- readable form into a humanreadable form; (ii) disassembling or decompiling the
Application by using any means or methods to translate
machine-dependent or machine-independent object code
into the original human-readable source code or any
approximation thereof; (iii) examining the machine-readable
object code that controls the Application’s operation and
creating the original source code or any approximation thereof
by, for example, studying the Application’s behavior in
response to a variety of inputs; or (iv) performing any other
activity related to the Application that could be construed to
be reverse engineering, disassembling, or decompiling. To the
extent any such activity may be permitted pursuant to written
agreement, the results thereof will be deemed Confidential
Information subject to the requirements of these SaaS
Terms. Customer may use Service Provider’s Confidential
Information solely in connection with the Application and
pursuant to the terms of these SaaS Terms.
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Authorized Users. Unless otherwise specifically
provided, “Authorized Users” will only consist
of: (i) employees of Customer, and (ii) subject to Section 5
(Confidentiality), third party contractors of Customer who do
not compete with Service Provider (“Permitted
Contractors”). Permitted Contractors may Use the Software
only at Customer’s place of business or in the presence of
Customer personnel. Customer is fully liable for the acts and
omissions of Permitted Contractors under these SaaS Terms. Customer shall not permit any
parent, subsidiaries, affiliated entities, or third parties to access
the Software.
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Customer License Grant. Customer grants to
Service Provider a non-exclusive, royalty-free license to
access, use, reproduce, modify, perform, display and
distribute Customer data as is reasonable or necessary for
Service Provider to perform or provide the Application.
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PAYMENT
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Fees. Customer shall pay Service Provider the fees
indicated on the pricing model. Unless otherwise stated,
all fees are to be paid to Service Provider within ten (10)
days of the date of invoice. Any late payment will be subject to
any costs of collection (including reasonable legal fees). If
Customer has set up a direct debit, Service Provider will not
debit Customer’s designated account before seven (7) days
have elapsed from the date of the invoice. If Customer is
delinquent on a payment of fees for ten (10) days or
more, Service Provider may suspend access to the
Application. Complaints concerning invoices must be made
in writing within thirty (30) days from the date of the invoice.
Invoices will be sent by electronic delivery unless requested
otherwise by Customer, additional fees will apply.
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Taxes. The subscription, service fees, and other
amounts required to be paid hereunder do not include any amount for taxes or levy (including penalties).
Customer shall reimburse Service Provider and hold
Service Provider harmless for all sales, use, VAT, excise,
property or other taxes or levies which Service Provider is
required to collect or remit to applicable tax authorities. This
provision does not apply to Service Provider’s income or
franchise taxes, or any taxes for which Customer is exempted,
provided Customer has furnished Service Provider with a
valid tax exemption certificate. The Customer will pay all
import duties, levies or imposts, and all goods and services
sales, use, value added or property taxes of any nature,
assessed upon or with respect to the SaaS Terms. If the
Customer is required by law to make any deduction or to
withhold from any sum payable to the Service Provider by the
Customer hereunder, then the sum payable by the Customer
upon which the deduction or withholding is based shall be
increased to the extent necessary to ensure that, after such
deduction or withholding, the Service Provider receives and
retains, free from liability for such deduction or withholding, a
net amount equal to the amount the Service Provider would
have received and retained in the absence of such required
deduction or withholding. If the Customer is required by law to
make any such deduction or withholding, the Customer shall
promptly effect payment thereof to the applicable tax
authorities. The Customer shall also promptly provide the
Service Provider with official tax receipts or other evidence
issued by the applicable tax authorities sufficient to enable the
Service Provider to support a claim (if applicable) for income
tax credits in the Service Provider’s applicable taxable country.
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HOSTING
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Service Availability. Service Provider will use
reasonable efforts to achieve Service Provider’s availability
goals described in the ‘
Service Level Addendum for SaaS
’
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Support Services. Upon subscription the Customer is entitled to basic support, including bug fixes, application updates and guides.
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OWNERSHIP
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Reservation of Rights. By subscribing,
Customer irrevocably acknowledges that, subject to the rights
granted herein, Customer has no ownership interest in the
Software or Service Provider materials provided to
Customer. Service Provider will own all right, title, and
interest in such Software and Service Provider materials,
subject to any limitations associated with intellectual property
rights of third parties. Service Provider reserves all rights not
specifically granted herein.
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Marks and Publicity. Service Provider and
Customer trademarks, trade names, service marks, and
logos, whether or not registered (“Marks”), are the sole and
exclusive property of the respective owning party, which owns
all right, title and interest therein. Service Provider may: (i) use
the Customer’s name and/or logo within product literature,
press release(s), social media, and other marketing
materials; (ii) quote the Customer’s statements in one or
more press releases; and/or (iii) make such other use of the
Customer’s name and/or logo as may be agreed
between the parties. Additionally, Service Provider may
include Customer’s name and/or logo within its list of
customers for general promotional purposes. Service
Provider shall comply with Customer’s trademark use
guidelines as such are communicated to the Service
Provider in writing and Service Provider shall use the
Customer’s Marks in a manner which is consistent with industry practice. Neither party grants to the other any title,
interest or other right in any Marks except as provided in this
Section.
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CONFIDENTIALITY
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Definition. “Confidential Information” includes all
information marked pursuant to this Section and disclosed
by either party, before or after the Subscription Start Date, and generally not publicly known,
whether tangible or intangible and in whatever form or medium
provided, as well as any information generated by a party that
contains, reflects, or is derived from such information. For
clarity, the term ‘Confidential Information’ does not include any
personally identifiable information.
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Confidentiality of Software. All Confidential
Information in tangible form will be marked as “Confidential”
or the like or, if intangible (e.g., orally disclosed), will be
designated as being confidential at the time of disclosure and
will be confirmed as such in writing within thirty (30) days of
the initial disclosure. Notwithstanding the foregoing, the
following is deemed Service Provider Confidential Information
with or without such marking or written confirmation: (i) the
Software and other related materials furnished by Service
Provider; (ii) the oral and visual information relating to the
Application; and (iii) these SaaS Terms.
- Exceptions. Without granting any right or license, the
obligations of the parties hereunder will not apply to any
material or information that: (i) is or becomes a part of the
public domain through no act or omission by the receiving
party; (ii) is independently developed by the other party
without use of the disclosing party’s Confidential
Information; (iii) is rightfully obtained from a third party without
any obligation of confidentiality; or (iv) is already known by
the receiving party without any obligation of confidentiality
prior to obtaining the Confidential Information from the
disclosing party. In addition, neither party will be liable for
disclosure of Confidential Information if made in response to
a valid order of a court or authorized agency of government,
provided that notice is promptly given to the disclosing party
so that the disclosing party may seek a protective order and
engage in other efforts to minimize the required disclosure.
The parties shall cooperate fully in seeking such protective
order and in engaging in such other efforts.
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Ownership of Confidential Information. Nothing in
these SaaS Terms will be construed to convey any title or
ownership rights to the Software or other Confidential
Information to Customer or to any patent, copyright,
trademark, or trade secret embodied therein, or to grant any
other right, title, or ownership interest to the Service Provider’s
Confidential Information. Neither party shall, in whole or in
part, sell, lease, license, assign, transfer, or disclose the
Confidential Information to any third party and shall not copy,
reproduce or distribute the Confidential Information except as
expressly permitted in these SaaS Terms. Each party shall
take every reasonable precaution, but no less than those
precautions used to protect its own Confidential Information,
to prevent the theft, disclosure, and the unauthorized
copying, reproduction or distribution of the Confidential
Information.
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Non-Disclosure. Each party agrees at all times to use
all reasonable efforts, but in any case no less than the efforts
that each party uses in the protection of its own Confidential
Information of like value, to protect Confidential Information
belonging to the other party. Each party agrees to restrict
access to the other party’s Confidential Information only to
those employees or Subcontractors who: (i) require access in
the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no
less restrictive than those set forth in this Section.
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Injunctive Relief. Each party acknowledges that any
unauthorized disclosure or use of the Confidential
Information would cause the other party imminent irreparable
injury and that such party will be entitled to, in addition to any
other remedies available at law or in equity, temporary,
preliminary, and permanent injunctive relief in the event the
other party does not fulfill its obligations under this Section.
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Suggestions/Improvements to Software.
Notwithstanding this Section, unless otherwise expressly
agreed in writing, all suggestions, solutions, improvements,
corrections, and other contributions provided by Customer
regarding the Software or other Service Provider materials
provided to Customer will be owned by Service Provider, and
Customer hereby agrees to assign any such rights to
Service Provider. Nothing in these SaaS Terms will preclude
Service Provider from using in any manner or for any purpose
it deems necessary, the know-how, techniques, or
procedures acquired or used by Service Provider in the
performance of services hereunder.
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WARRANTY
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No Malicious Code. To the knowledge of Service
Provider, the Application does not contain any malicious code,
program, or other internal component (e.g. computer virus,
computer worm, computer time bomb, or similar component),
which could damage, destroy, or alter the Application, or
which could reveal, damage, destroy, or alter any data or
other information accessed through or processed by the
Application in any manner. This warranty will be considered
part of and covered under the provisions of these SaaS
Terms. Customer must: (i) notify Service Provider promptly
in writing of any nonconformance under this warranty; (ii)
provide Service Provider with reasonable opportunity to
remedy any nonconformance under the provisions of these
SaaS Terms; and (iii) provide reasonable assistance in
identifying and remedying any nonconformance.
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Authorized Representative. Customer and Service
Provider warrant that each has the right to enter into these
SaaS Terms and that these SaaS Terms
executed hereunder will be executed by an authorized
representative of each entity.
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Services Warranty. Service Provider warrants that all
services performed hereunder shall be performed in a
workmanlike and professional manner.
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Disclaimer of Warranties. ANY AND ALL OF
SOFTWARE, SERVICES, CONFIDENTIAL INFORMATION
AND ANY OTHER TECHNOLOGY OR MATERIALS
PROVIDED BY SERVICE PROVIDER TO THE CUSTOMER
ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF
ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY
STATED IN SECTION 6 OF THESE SAAS TERMS.
SERVICE PROVIDER MAKES NO OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRINGEMENT.
NEITHER SERVICE PROVIDER (NOR ANY OF ITS
SUBSIDIARIES, AFFILIATES, SUPPLIERS OR LICENSORS)
WARRANTS OR REPRESENTS THAT THE SOFTWARE
OR SERVICES WILL BE UNINTERRUPTED, ERRORFREE, OR SECURE. CUSTOMER ACKNOWLEDGES THAT
THERE ARE RISKS INHERENT IN INTERNET
CONNECTIVITY THAT COULD RESULT IN THE LOSS OF
CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL
INFORMATION, AND PROPERTY.
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Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties under these
SaaS Terms are VOID if Customer has made changes to
the Software or has permitted any changes to be made other
than by or with the express, written approval of Service
Provider.
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INDEMNIFICATION
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Service Provider Indemnity. Service Provider will
defend at its expense any cause of action brought against
Customer, to the extent that such cause of action is based on
a claim that the Application, as hosted by Service Provider to
Customer, infringes a United States patent, copyright, or
trade secret of a third party. Service Provider will pay those
costs and damages finally awarded against Customer
pursuant to any such claim or paid in settlement of any such
claim if such settlement was approved in advance by Service
Provider. Customer may retain its own counsel at Customer’s
own expense.
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No Liability. Service Provider will have no liability for
any claim of infringement based on: (i) Software which has
been modified by parties other than Service Provider where the
infringement claim would not have occurred in the absence of
such modification; (ii) Customer’s use of the Software in
conjunction with data or third party software where use with
such data or third party software gave rise to the infringement
claim; or (iii) Customer’s use of the Software outside the
permitted scope of these SaaS Terms.
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Remedies. Should the Software become, or in
Service Provider’s opinion is likely to become, the subject of
a claim of infringement, Service Provider may, at its option,
(i) obtain the right for Customer to continue using the Software,
(ii) replace or modify the Software so it is no longer infringing
or reduces the likelihood that it will be determined to be
infringing, or (iii) if neither of the foregoing options is
commercially reasonable, terminate the access and Use of the
Software. Upon such termination, Customer shall cease
accessing the Software and Service Provider will refund to
Customer, as Customer’s sole remedy for such subscription
termination, the subscription fees paid by Customer for the
terminated license for the past month. THIS
SECTION 7 STATES THE ENTIRE LIABILITY OF SERVICE
PROVIDER WITH RESPECT TO ANY CLAIM OF
INFRINGEMENT REGARDING THE APPLICATION.
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Customer Indemnity. Customer agrees to defend,
indemnify, and hold Service Provider and its officers,
directors, employees, consultants, and agents harmless from
and against any and all damages, costs, liabilities, expenses
(including, without limitation, reasonable attorneys’ fees), and
settlement amounts incurred in connection with any claim
arising from or relating to Customer’s: (i) breach of any of its
obligations set forth in Section 10 (Customer Obligations); (ii)
Customer’s gross negligence or willful misconduct; (iii)
actual or alleged use of the Application in violation of these
SaaS Terms or applicable law by Customer or any Authorized
Users; (iv) any actual or alleged infringement or
misappropriation of third party intellectual property rights arising
from data provided to Service Provider by the Customer or
otherwise inputted into the Application, whether by the
Customer, an Authorized User or otherwise including
Customer Work Product (as defined below); and/or (v) any
violation by Customer or its Authorized Users, of any terms,
conditions, agreements or policies of any third party service
provider. “Customer Work Product” means that data and
those forms developed or acquired by Customer for internal
business purposes independent from Service Provider or the
Application.
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Indemnification Procedures. Each indemnifying
party’s obligations as set forth in this Section are subject to the other party: (i) giving the indemnifying party prompt written
notice of any such claim or the possibility thereof; (ii) giving
the indemnifying party sole control over the defense and
settlement of any such claim; and (iii) providing full cooperation
in good faith in the defense of any such claim.
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LIMITATION OF LIABILITY
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Liability Cap. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL
SERVICE PROVIDER BE LIABLE UNDER ANY THEORY OF
LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR
COMMON LAW ACTION ARISING HEREUNDER FOR
CONTRACT, STRICT LIABILITY, INDEMNITY, TORT
(INCLUDING NEGLIGENCE), ATTORNEYS FEES AND
COSTS, OR OTHERWISE, FOR DAMAGES WHICH, IN THE
AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID
BY CUSTOMER FOR THE SERVICES WHICH GAVE RISE
TO SUCH DAMAGES.
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Disclaimer of Damages. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT WILL SERVICE PROVIDER BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY,
PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND
AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED
TO, ATTORNEYS FEES AND COSTS, BUSINESS
INTERRUPTION OR LOSS OF PROFITS, BUSINESS
OPPORTUNITIES, OR GOODWILL.
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THE FOREGOING LIMITATIONS APPLY EVEN IF
NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE AND
NOTWITHSTANDING THE FAILURE OF ESSENTIAL
PURPOSE OF ANY REMEDY.
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TERM AND TERMINATION
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Subscription Term. The term of these SaaS Terms
will continue until the termination of the subscription. Subject to
the termination rights herein, the term shall automatically
renew for the same term period as the term indicated within the
then-current billing cycle at Service Provider’s then-current rates,
unless Customer explicitly disable subscripition. The Customer shall pay the pending amount for the term used.
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Termination by Service Provider. These SaaS
Terms and any rights created hereunder may be terminated
by Service Provider: (i) if Customer fails to make any
payments due hereunder within ten (10) days from the invoice
date; (ii) on thirty (30) days written notice to Customer if
Customer fails to perform any other material obligation required
of it hereunder, and such failure is not cured within such thirty
(30) day period; or (iii) Customer files a petition for
bankruptcy or insolvency, has an involuntary petition filed
against it, commences an action providing for relief under
bankruptcy laws, files for the appointment of a receiver, or is
adjudicated a bankrupt concern.
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Termination by Customer. These SaaS Terms
may be terminated by Customer by explicitly disabling the subscription. Customer is liable to pay the amount for the duration of service used from last invoice.
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Effect of Termination. Upon termination of these
SaaS Terms, Customer shall no longer access the Software
and Customer shall not circumvent any security mechanisms
contained therein.
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Other Remedies. Termination of SaaS Terms will
not limit either party from pursuing other remedies available to
it, including injunctive relief, nor will such termination relieve
Customer’s obligation to pay all fees that have accrued or are
otherwise owed by Customer under these SaaS Terms.
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CUSTOMER OBLIGATIONS
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Customer agrees that no employees of Service
Provider will be required to individually sign any agreement in
order to perform any services hereunder including, but not
limited to, access agreements, security agreements, facilities
agreements or individual confidentiality agreements
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Customer agrees to comply with all applicable
laws, regulations, and ordinances relating to these SaaS
Terms. Customer shall ensure that each Web site for which
the Application is engaged contains or is linked to a privacy
policy that governs its data collection and use practices.
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The Customer shall be obliged to inform its Authorized
Users before the beginning of use of the Software about the
rights and obligations set forth in these SaaS Terms. The
Customer will be liable for any violation of obligations by
its Authorized Users or by other third parties who violate
obligations within the Customer's control.
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The Customer shall be obliged to keep the login
names and the passwords required for the use of the
Application confidential, to keep it in a safe place, and to protect
it against unauthorized access by third parties with
appropriate precautions, and to instruct its Authorized Users
to observe copyright regulations. Personal access data must
be changed at regular intervals.
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Before entering its data and information, the
Customer shall be obliged to check the same for viruses or
other harmful components and to use state of the art anti-virus
programs for this purpose. In addition, the Customer itself
shall be responsible for the entry and the maintenance of
its data.
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Service Provider has the right (but not the obligation)
to suspend access to the Application or remove any data or
content transmitted via the Application without liability (i) if
Service Provider reasonably believes that the Application is
being used in violation of these SaaS Terms or applicable
law, (ii) if requested by a law enforcement or government
agency or otherwise to comply with applicable law, provided
that Service Provider shall use commercially reasonable
efforts to notify Customer prior to suspending the access to
the Application as permitted under these SaaS Terms, or (iii)
as otherwise specified in these SaaS Terms. Information on
Service Provider’s servers may be unavailable to Customer
during a suspension of access to the Software. Service
Provider will use commercially reasonable efforts to give
Customer at least twelve (12) hours’ notice of a suspension
unless Service Provider determines in its commercially
reasonable judgment that a suspension on shorter or
contemporaneous notice is necessary to protect Service
Provider or its customers.
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During the term of these SaaS Terms and for a
period of two (2) years following any termination or
expiration of these SaaS Terms, Customer shall maintain
written records related to the use of the Software by
Customer, as reasonably necessary to verify compliance with
the usage terms of these SaaS Terms. Such records will be
kept in accordance with Customer’s records retention policy
and records retention schedule applicable thereto. Not more
than once annually, and with notice of not less than 20
business days, Service Provider may (or may engage a thirdparty, which will be subject to a confidentiality obligation), to
verify compliance ("Verification"). Verification will take place
during normal business hours and in a manner that does not
interfere unreasonably with Customer's operations. At
Service Provider’s option, Service Provider may request,
and Customer hereby agrees to complete, a self-audit
questionnaire relating to Customer's usage under the rights granted by Supplier to Customer in the SaaS Terms. If
Verification or self-audit reveals excess use of the Software,
Customer agrees to compensate Service Provider for such
usage. All costs of the Verification will be borne by Service
Provider, unless excess usage of 5% or more is found
("Material Excess Usage"). If Material Excess Usage is found
during Verification, Customer shall reimburse Service
Provider for the actual costs associated with performance of
the Verification. Service Provider and any third-party involved
in the Verification will use the information obtained in
compliance review only to enforce Service Provider’s rights
and to determine Customer's compliance with the terms of the
rights granted in these SaaS Terms. By invoking the rights
and procedures described in this Section, Service Provider
does not waive its rights to enforce other terms of these SaaS
Terms, including, but not limited to, any intellectual property
rights by other means as permitted by law.
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MISCELLANEOUS
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Assignment. Customer may not assign these SaaS
Terms or otherwise transfer any right created hereunder
whether by operation of law, change of control, or in any other
manner, without the prior written consent of Service Provider.
Any purported assignment of these SaaS Terms, or any rights in
violation of this Section will be deemed void. Service Provider
may assign these SaaS Terms, sub-contract or otherwise
transfer any right or obligation under these SaaS Terms to a
third party without the Customer’s prior written consent.
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Foreign Nationals. Customer acknowledges that
Service Provider employs foreign nationals, and that these
foreign national employees will work, on Service Provider’s
behalf, to perform its obligations and services hereunder.
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Affiliates and Third Parties. At the direction and
sole discretion of Service Provider, affiliates of Service
Provider (the “Service Provider Affiliates”) may perform certain
tasks related to Service Provider’s obligations and rights
under the Subscription Agreement, including, but not
limited to, invoicing, payment, technical support, project
management and/or sales support. Customer hereby
consents to the Service Provider Affiliates' role. Customer
further agrees and acknowledges that Service Provider and
Customer are the only parties to the Subscription
Agreement, and that any action taken by Service Provider
Affiliates in connection with the performance of Service
Provider’s obligations under the Subscription
Agreement will not give rise to any cause of action against the
Service Provider Affiliates, regardless of the theory of recovery.
Service Provider shall at all times retain full responsibility for
Service Provider Affiliates’ compliance with the applicable
terms and conditions of the Subscription Agreement.
Service Provider will have the right to use third parties,
including offshore entities who employ foreign nationals, as
well as employees and contractors of Service Provider
Affiliates and subsidiaries, who may also be foreign nationals
(collectively, “Subcontractors”) in the performance of its
obligations hereunder and, for purposes of these SaaS Terms,
all references to Service Provider or its employees will be
deemed to include such Subcontractors. Service Provider will
have the right to disclose Customer Confidential Information
to such third parties provided such third parties are subject to
confidentiality obligations similar to those between Service
Provider and Customer.
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Technical Data. Customer shall not provide to
Service Provider any technical data as that term is defined in
the International Traffic in Arms Regulations (“ITAR”) at 22
CFR 120.10. Customer shall certify that all information
provided to Service Provider has been reviewed and scrubbed so that all technical data and other sensitive information
relevant to Customer’s ITAR regulated project has been
removed and the information provided is only relevant to bug
reports on Service Provider products.
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Data Clearing. During the use of service data retained against the use of service becomes
obsolete after a period of six (6) months. The Service Provider in order to ensure speedy service may decide to clear such data.
The Customer agrees to allow the Service Provider of such actions. Statistics against such obsolete data remains intact.
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Compliance with Laws. Both parties agree to
comply with all applicable laws, regulations, and
ordinances relating to such party’s performance under these
SaaS Terms.
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Survival. The provisions set forth in Sections 2, 4, 5,
6.4, 8, 9.3, 9.4 and 11 of these SaaS Terms will survive
termination or expiration of these SaaS Terms and any
applicable license hereunder.
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Notices. Any notice required under these SaaS Terms
shall be given in writing and will be deemed effective upon
delivery to the party to whom addressed. All notices shall
be sent to the applicable email address of the Customer account. Any
notice of material breach will clearly define the breach
including the specific contractual obligation that has been
breached.
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Force Majeure. Service Provider will not be liable to
Customer for any delay or failure of Service Provider to
perform its obligations hereunder if such delay or failure arises
from any cause or causes beyond the reasonable control of
Service Provider. Such causes will include, but are not
limited to, acts of God, floods, fires, loss of electricity or other
utilities, or delays by Customer in providing required
resources or support or performing any other requirements
hereunder.
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Restricted Rights. Use of the Software by or for
any Government is conditioned upon the
Government agreeing that the Software is subject to
Restricted Rights as provided under the provisions set forth per the country's law.
Customer shall be responsible for assuring
that this provision is included in all agreements with the Government and that the Software, when
accessed by the Government, is correctly marked as
required by applicable Government regulations governing such
Restricted Rights as of such access.
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Privacy. Obligations with respect to personally
identifiable information (if any) are set forth in the ‘
Privacy
Policy
’
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Entire Agreement. These SaaS Terms together with
the documents referenced herein constitute the entire
agreement between the parties regarding the subject matter
hereof and supersedes all proposals and prior discussions
and writings between the parties with respect to the subject
matter contained herein. All terms respecting the subject
matter of the SaaS Terms and contained in purchase
orders, invoices, acknowledgments, shipping instructions, or
other forms exchanged between the parties will be void and
of no effect.
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Modifications. The parties agree that these SaaS
Terms are subjected to modification with the introduction of new features. The Service Provider will communicate
the modifications made and the Customer may accept or reject the modified terms. In case of rejection, the Service Provider may decide to
terminate the Subscription if the rejection result in breach of terms or may result in damages.
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Non-solicitation. During the term of these SaaS
Terms and for a period of two (2) years thereafter, Customer
agrees not to hire, solicit, nor attempt to solicit, the
services of any employee or Subcontractor of Service
Provider without the prior written consent of Service
Provider. Customer further agrees not to hire, solicit, nor
attempt to solicit, the services of any former employee or
Subcontractor of Service Provider for a period of one (1) year
from such former employee’s or Subcontractor’s last date of
service with Service Provider. Violation of this provision will entitle Service Provider to liquidated damages against
Customer equal to two hundred percent (200%) of the
solicited person’s gross annual compensation.
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Headings. Headings are for reference purposes
only, have no substantive effect, and will not enter into the
interpretation hereof.
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No Waiver. No failure or delay in enforcing any right or
exercising any remedy will be deemed a waiver of any right or
remedy.
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Severability and Reformation. Each provision of
these SaaS Terms is a separately enforceable provision. If
any provision of these SaaS Terms is determined to be or
becomes unenforceable or illegal, such provision will be
reformed to the minimum extent necessary in order for these
SaaS Terms to remain in effect in accordance with its terms
as modified by such reformation.
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Independent Contractor. Service Provider is an
independent contractor and nothing in these SaaS Terms will
be deemed to make Service Provider an agent, employee,
partner, or joint venturer of Customer. Neither party will have
authority to bind, commit, or otherwise obligate the other
party in any manner whatsoever.
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Governing Law; Venue. The laws of United Arab Emirates & Pakistan govern the interpretation of these SaaS
Terms, regardless of conflict of laws principles. The parties
agree that the courts located in these countries will have exclusive jurisdiction for any
dispute arising under, out of, or relating to these SaaS Terms.
Mediation will be held in Islamabad, Pakistan.
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Dispute Resolution.
Negotiations. Where there is a dispute, controversy, or claim
arising under, out of, or relating to these SaaS Terms, the
aggrieved party shall notify the other party in writing of the
nature of such dispute with as much detail as possible about
the alleged deficient performance of the other party. A
representative from senior management of each of the parties
shall meet in person or communicate by telephone within five
(5) business days of the date of the written notification in order to reach an agreement about the nature of the
alleged deficiency and the corrective action to be taken by the
respective parties.
Mediation. Any dispute, controversy, or claim arising under,
out of, or relating to these SaaS Terms and any subsequent
amendments of these SaaS Terms, including, without
limitation, its formation, validity, binding effect,
interpretation, performance, breach, or termination, as well as
non-contractual claims, and any claims with respect to the
validity of this mediation agreement (hereinafter the “Dispute”),
shall be submitted to mediation in accordance with the thencurrent WIPO Mediation Rules. The language to be used in the
mediation will be English.
Opportunity to Cure. Notwithstanding anything contained
hereunder, Customer agrees and acknowledges that no dispute
resolution or litigation will be pursued by Customer for any
breach of these SaaS Terms until and unless Service Provider
has had an opportunity to cure any alleged breach. Customer
agrees to provide Service Provider with a detailed description of
any alleged failure and a description of the steps that Customer
understands must be taken by Service Provider to resolve the
failure. Service Provider shall have sixty (60) days from Service
Provider’s receipt of Customer’s notice to complete the cure.
Injunctive Relief. The parties agree that it will not be
inconsistent with their duty to mediate to seek injunctive or other
interim relief from a competent court. The parties, in addition to
all other available remedies, shall each have the right to initiate
an action in any court of competent jurisdiction in order to
request injunctive or other interim relief with respect to a
violation of intellectual property rights or confidentiality
obligations. The choice of venue does not prevent a party from
seeking injunctive or any interim relief in any appropriate
jurisdiction.