Aurea Email Marketing: ‘Software as a Service’ Terms and Conditions

These ‘Software as a Service’ Terms and Conditions (“SaaS Terms”) apply to and are incorporated by reference into the ordering document  (the “Quote”) made by and between the Service Provider (as identified on the Quote) and the Customer (as identified on the Quote) and set forth the terms and conditions under which Service Provider will provide the Customer with access to certain applications as set forth on the Quote (“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 licensing of such Applications (“Documentation”). The Applications and the Documentation shall hereinafter collectively be referred to as the Software.

Service Provider and Customer hereby agree as follows:

  1. LICENSE GRANT AND RIGHT OF USE
    1. License Grant. Subject to all limitations and restrictions contained herein and the Quote, Service Provider grants Customer a subscription, software as a service (‘SaaS’) (the “Services”), 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 on the Quote (“Use”) and solely to perform those functions described in the Documentation. For clarity, an “Application” means Service Provider’s proprietary software that is specifically licensed to Customer pursuant to a Quote.
    2. Use. Customer shall have a limited right and license 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 Services. Unless otherwise expressly permitted in the Quote and subject to Section 1.5, Customer shall not permit any subsidiaries, affiliated companies, or third parties to access the Services.
    3. License Type. Unless otherwise specifically stated in the Quote, the Application is licensed per annual volume basis where the number of actual annual emails used by the Customer cannot exceed the number of licenses purchased by the Customer.
    4. Additional Restrictions. In no event shall 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 human-readable 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 shall 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.
    5. Authorized Users. Unless otherwise specifically provided in the Quote, “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 Services 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 the SaaS Terms and applicable Quote.
    6. Agency Clients. Unless the applicable Quote permits Customer to use the Services as an agency, Customer shall use the Services solely for Customer’s own use and not for resale, sublicense, and/or distribution outside of Customer’s internal business. If the applicable Quote permits Customer to provide the Services as an agency, then Customer may use the Services as provided herein for the benefit of Customer’s clients (each, an “Agency Client”). If Service Provider has not approved Customer’s use of the Services for the benefit of any Agency Client, as provided within the applicable Quote, then Service Provider may immediately suspend Customer’s use of the Services on behalf of such Agency Client. Where Service Provider has approved of Customer’s use of the Services on behalf of an Agency Client, Customer shall ensure that such provision of Services is subject to the rights of Service Provider as provided in the SaaS Terms and applicable Quote. Customer shall be fully responsible for any breach of the provisions of the SaaS Terms and applicable Quote that may be caused by such Agency Client. In no event will Customer’s agreement with any of its Agency Clients either: (i) purport to create any obligation or liability on the party of Service Provider to any such Agency Client or any third party; or (ii) increase or purport to increase Service Provider’s obligations to Customer or an Agency Client in excess of those contained in the SaaS Terms and applicable Quote. All of Customer’s agreements with its Agency Clients relating to the Services must expressly disclaim any representations and warranties by Service Provider to such Agency Client and all liability of Service Provider to such Agency Client. In such case, Customer remains primarily liable for the performance of Customer’s and each Agency Client’s obligations under the SaaS Terms and applicable Quote.
    7. Third-Party Services. Customer may elect, in its sole discretion, to obtain other services from one or more third parties for use in conjunction with the Services. THIRD-PARTY SERVICES ARE PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS” BASIS WITHOUT ANY WARRANTY WHATSOEVER AND SERVICE PROVIDER HEREBY EXPRESSLY DISCLAIMS WITH RESPECT TO ANY THIRD PARTY SERVICES AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; AND (B) ALL LIABILITY FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, COVER, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST DATA OR LOST PROFITS, HOWEVER ARISING, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN WHERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    8. Reservation of Rights. Service Provider reserves all rights not specifically granted herein.
  2. PAYMENT
    1. Fees. Customer shall pay Service Provider the fees indicated on the Quote. Unless otherwise provided in a Quote, all fees shall be paid to Service Provider within thirty (30) days of the date of invoice. Any late payment shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. If Customer has set up a direct debit, Service Provider shall not debit Customer’s designated account before seven (7) days have elapsed from the date of the invoice. Complaints concerning invoices must be made in writing within thirty (30) days from the date of the invoice.
    2. Taxes. The license, service fees, and other amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and 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 exempt, provided Customer has furnished Service Provider with a valid tax exemption certificate.
  3. HOSTING
    1. Service Availability. Service Provider will use reasonable efforts to achieve Service Provider’s availability goals described in the ‘Service Level Agreement for SaaS.’
    2. Support Services. Upon payment of the relevant fees on the applicable Quote, Customer may receive certain support services for the Application pursuant to ‘Support Agrement for SaaS.’
  4. OWNERSHIP
    1. Customer Materials & Content. Customer retains all right, title, and interest in and to any software, hardware, data, tools, techniques, or other materials that Customer provides to Service Provider in connection with the Services (“Customer Materials”). Customer represents and warrants, and will require each of its Agency Clients (if any) to represent and warrant that: (i) it will not use the Services in any manner which violates any third party’s rights; and (ii) by transmitting or allowing the transmission of any Content via the Services (if applicable), it grants Service Provider the royalty-free, irrevocable, nonexclusive, worldwide license to transmit and display such Content in whole or in part via the Services for the duration of the Services. “Content” means the content of any website, email messages, or other materials produced, provided to Service Provider and/or used by Customer in conjunction with the Services.
    2. Service Provider Materials & Services. Service Provider retains all right, title, and interest in and to any software, hardware, data, tools, techniques, or other materials that it uses or develops in connection with its provision of the Services, subject to Customer’s rights to the Customer Materials and Customer’s Confidential Information (the “Service Provider Materials”). The Services, and all of their elements, remains the property of Service Provider, or where applicable, Service Provider’s supplier. Customer has no right, title, or interest therein except as specified above. All modifications, upgrades, and enhancements, including, without limitation, any Customer suggestions for new features or functionality of the Services, are the property of Service Provider. The Services are provided subject to Customer’s compliance with Service Provider’s Terms of Use for SaaS. Service Provider reserves all rights not specifically granted under these SaaS Terms.
    3. Limited License to Data. As between Service Provider and Customer, Customer owns all right, title, and interest in and to any data that Service Provider collects and stores on behalf of Customer in providing the Services (the “Data”). Customer grants Service Provider a nonexclusive, nontransferable license to: (i) capture and maintain the Data in connection with Service Provider ’s provision of Services to Customer and enforcement of its rights as described in the applicable Quote; and (ii) compile aggregated statistics including the Data along with data of other Service Provider customers for internal or marketing use (provided that no such use shall include any information that can identify Customer or any of its end users or Agency Clients). Notwithstanding the foregoing, Customer acknowledges that Service Provider may access Customer’s hosted membership list(s) in order to unsubscribe a member who has sent to Service Provider a request that it do so or a complaint to the effect that such member is unable or unwilling to unsubscribe themselves, or if the presence of such member’s email address on the list violates the SaaS Terms or the applicable Quote
    4. 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.
  5. CONFIDENTIALITY
    1. Definition. “Confidential Information” includes all information marked pursuant to this Section and disclosed by either party, before or after the Effective 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. Obligations with respect to such information (if any) may be set forth in a separate agreement between the parties.
    2. Confidentiality of Software. All Confidential Information in tangible form shall be marked as “Confidential” or the like or, if intangible (e.g., orally disclosed), shall be designated as being confidential at the time of disclosure and shall 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.
    3. Exceptions. Without granting any right or license, the obligations of the parties hereunder shall 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 shall 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.
    4. Ownership of Confidential Information. Nothing in these SaaS Terms shall 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.
    5. Non-Disclosure. Each party agrees at all times to keep strictly confidential all 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.
    6. 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 shall 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.
    7. 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 shall be owned by Service Provider, and Customer hereby agrees to assign any such rights to Service Provider. Nothing in these SaaS Terms shall 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.
  6. WARRANTY
    1. 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 Support and Enhancement Services provisions of the 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 Support and Enhancement Services provisions; and (iii) provide reasonable assistance in identifying and remedying any nonconformance.
    2. Authorized Representative. Customer and Service Provider warrant that each has the right to enter into these SaaS Terms and that the SaaS Terms and Quotes executed hereunder shall be executed by an authorized representative of each entity.
    3. Services Warranty. Service Provider warrants that all Services performed hereunder shall be performed in a workmanlike and professional manner.
    4. 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.
    5. 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.
  7. INDEMNIFICATION
    1. 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 Software, 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.
    2. No Liability. Service Provider shall 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 Application in conjunction with data where use with such data gave rise to the infringement claim; or (iii) Customer’s use of the Software outside the permited scope of these SaaS Terms.
    3. 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 license termination, the subscription fees paid by Customer for the terminated license for the past twelve months. THIS SECTION 7 STATES THE ENTIRE LIABILITY OF SERVICE PROVIDER WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE SOFTWARE.
    4. 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”); and/or (ii) Customer’s gross negligence or willful misconduct.
    5. 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.
  8. LIMITATION OF LIABILITY
    1. LIABILITY CAP. SERVICE PROVIDER’S (AND ITS AFFILIATES, LICENSORS AND AGENTS) LIABILITY ARISING OUT OR RELATED TO THESE SAAS TERMS WILL NOT EXCEED, IN THE AGGREGATE, THE FEE ACTUALLY PAID TO SERVICE PROVIDER FOR THE SAAS SUBSCRIPTION FEE UNDER A QUOTE THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM.
    2. DISCLAIMER OF DAMAGES. IN NO EVENT WILL SERVICE PROVIDER (OR ITS AFFILIATES, LICENSORS OR AGENTS) BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OR ANY LOSS OF REVENUE, GOODWILL, PROFITS, DATA OR DATA USE ARISING OUT OR RELATED TO THESE SAAS TERMS.
    3. THE LIABILITIES LIMITED BY SECTIONS 8.1 AND 8.2 APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE; (C) EVEN IF SERVICE PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; (D) ATTORNEYS FEES AND COSTS; AND (E) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THIS SECTION 8, SERVICE PROVIDER’S (AND ITS AFFILIATES, LICENSORS AND AGENTS) LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
  9. TERM AND TERMINATION
    1. Subscription Term. Customer may use the Services pursuant to these SaaS Terms and for the period of time set forth in the Quote or until these SaaS Terms terminate as provided herein.
    2. Termination by Service Provider. These SaaS Terms and any license created hereunder may be terminated by Service Provider: (i) if Customer fails to make any payments due hereunder within fifteen (15) days of the due 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.
    3. Termination by Customer. These SaaS Terms may be terminated by Customer on ninety (90) days written notice to Service Provider if Service Provider fails to perform any material obligation required of it hereunder, and such failure is not cured within ninety (90) days from Service Provider’s receipt of Customer’s notice or a longer period if Service Provider is working diligently towards a cure.
    4. Effect of Termination. Upon termination of the SaaS Terms, Customer shall no longer access the Software and Customer shall not circumvent any security mechanisms contained therein.
    5. Other Remedies. Termination of SaaS Terms shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under these SaaS Terms.
  10. CUSTOMER OBLIGATIONS
    1. Customer agrees that no employees of Service Provider shall 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.
    2. 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.
    3. 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 shall be liable for any violation of obligations by its Authorized Users or by other third parties who violate obligations within the Customer’s control.
    4. 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.
    5. 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.
    6. In the case of serious violations of the duties according to this sub-paragraph on the part of the Customer, Service Provider shall be entitled to block access to the Software.
  11. MISCELLANEOUS
    1. Third Parties. Service Provider shall have the right to use third parties, including, but not limited to, employees and consultants of Service Provider’s affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and Services hereunder and, for purposes of this Section, all references to Service Provider or its employees shall be deemed to include such Subcontractors.
    2. 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.
    3. Assignment. Customer may not assign these SaaS Terms or otherwise transfer any license created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Service Provider. Any assignment or transfer in violation of this Section shall be null and void.
    4. Survival. The provisions set forth in Sections 2, 4, 5, 6.4, 8, 9.3, 9.4 and 11 of these SaaS Terms shall survive termination or expiration of these SaaS Terms and any applicable license hereunder.
    5. Notices. All notices under this License Agreement will be in writing and will be considered given as of twenty-four (24) hours after sending by electronic means (such as fax or e-mail as duly provided by the authorized representatives of either party for such purpose) or by overnight air courier service, or upon delivery to the party to whom addressed after deposit in the mail (certified, return receipt requested) to the addresses mentioned on the Quote.
    6. Force Majeure. Service Provider shall 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 shall 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.
    7. Restricted Rights. Use of the Software by or for the United States Government is conditioned upon the Government agreeing that the Software is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. Customer shall be responsible for assuring that this provision is included in all agreements with the United States 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.
    8. Entire Agreement. These SaaS Terms together with any 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.
    9. Modifications. The parties agree that these SaaS Terms cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party. Notwithstanding the foregoing, Service Provider may change these SaaS Terms from time to time by posting such amended terms to Service Provider’s site, but will provide sixty (60) days advance notice to Customer before materially reducing the benefits offered to Customer under these SaaS Terms.
    10. Nonsolicitation. 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 shall entitle Service Provider to liquidated damages against Customer equal to two hundred percent (200%) of the solicited person’s gross annual compensation.
    11. No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
    12. Severability and Reformation. Each provision of these SaaS Terms is a separately enforceable provision. If any provision of the SaaS Terms is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for the SaaS Terms to remain in effect in accordance with its terms as modified by such reformation.
    13. Independent Contractor. Service Provider is an independent contractor and nothing in these SaaS Terms shall be deemed to make Service Provider an agent, employee, partner, or joint venturer of Customer. Neither party shall have authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
    14. Governing Law; Venue. The laws of the State of Texas, USA govern the interpretation of these SaaS Terms, regardless of conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (1980) and the Uniform Computer Information Transactions Act (UCITA) are hereby excluded in their entirety from application to these SaaS Terms. The parties agree that the federal and state courts located in Travis County, Texas, USA will have exclusive jurisdiction for any dispute arising under, out of, or relating to these SaaS Terms. Mediation will be held in Austin, Texas, USA.
    15. 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 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 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, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach, or termination, as well as non-contractual claims, shall be submitted to mediation in accordance with the 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 shall 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 thirty (30) days from Service Provider’s receipt of Customer’s notice to complete the cure.
    • Injunctive Relief. The choice of venue does not prevent a party from seeking injunctive relief in any appropriate jurisdiction with respect to a violation of intellectual property rights or confidentiality obligations. For clarity, the parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief as necessary, without breach of this Section and without abridgment of the powers of the mediator.

Updated: May 15, 2016.