Master Software as a Service Agreement

This Master Software as a Service Agreement (this “Agreement”) is entered into as of _________, 20 (the “Effective Date”), by and between Proverbs Technology, Inc., a Tennessee corporation with its principal place of business at 345 S. Jefferson Ave, Suite 400, Cookeville, TN 38501 (“Vendor”), and ____, a _____ with its principal place of business at _______ (“Customer”). Vendor and Customer are sometimes referred to individually as a “Party” and collectively as the “Parties.” This Master Software as a Service Agreement (“MSA”) is maintained on Vendor’s website at dot-ready.com. The Order Form or other electronic agreement executed by Customer incorporates this MSSA by reference. Blanks in the preamble are for illustration purposes only. The Effective Date, Party identities, and addresses shall be as set forth in the executed Order Form.

Recitals

 

1. Vendor owns and operates certain software applications and related technologies that it makes available to customers as an online, hosted, subscription-based service.

 

2. Customer desires to obtain, and Vendor desires to provide, access to and use of such services on the terms and conditions set forth in this Agreement and in one or more Order Forms (as defined below).

  In consideration of the mutual covenants and promises to set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions

1. “Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, where “control” means ownership of more than fifty percent (50%) of the voting interests of the entity or the power to direct or cause the direction of the management and policies of the entity, whether by contract or otherwise.

 

2. “Agreement” has the meaning set forth in the preamble and includes all Order Forms, SOWs, exhibits, schedules, and addenda executed by the Parties that expressly reference this Agreement.

 

3. “Authorized User” means an individual employee, contractor, or agent of Customer or its Affiliates who is authorized by Customer to access and use the Services pursuant to this Agreement and the applicable Order Form and for whom the applicable subscription fees have been paid.

 

4. “Business Day” means any day other than a Saturday, Sunday, or a day on which banking institutions in the State of Tennessee are authorized or required by law to close.

 

5. “Confidential Information” has the meaning set forth in Section 11.1.

 

6. “Customer Data” means any and all data, information, content, records, files, and other materials (including Personal Data) that are provided, uploaded, transmitted, or submitted by or on behalf of Customer or its Authorized Users to the Services, or generated for Customer’s account in the course of Customer’s use of the Services (other than Aggregated Data and Service Data, as defined below).

 

7. “Documentation” means the then-current standard written or electronic user guides, release notes, specifications, and operating manuals for the Services provided or made available by Vendor to Customer.

 

8. “Effective Date” has the meaning set forth in the preamble.

 

9. “Feedback” means any suggestions, comments, ideas, know-how, or other feedback regarding the Services or Vendor Technology that Customer or its Authorized Users provide to Vendor.

 

10. “Fees” means, collectively, all subscription, usage, implementation, professional services, support, and other fees payable by Customer under this Agreement and any Order Form or SOW.

 

11. “Force Majeure Event” has the meaning set forth in Section 19.1.

 

12. “Initial Term” has the meaning set forth in Section 14.1.

 

13. “Intellectual Property Rights” means all worldwide rights, titles, and interests in and to patents, patent applications, trademarks, service marks, trade dress, trade names, logos, domain names, copyrights, moral rights, mask works, trade secrets, know-how, inventions, proprietary processes, and all other intellectual property and proprietary rights, whether registered or unregistered, and all applications, registrations, renewals, extensions, and restorations thereof.

 

14. “Order Form” means a document executed by both Parties that references this Agreement, specifies the Services to be provided by Vendor, and sets forth the applicable Fees, subscription metrics, Service Start Date, and other commercial terms. An Order Form may be titled “Order Form,” “User Order,” “Service Order,” or similar.

 

15. “Personal Data” means any information relating to an identified or identifiable natural person that is processed by Vendor as a processor or service provider on behalf of Customer in connection with the Services.

 

16. “Professional Services” means implementation, configuration, integration, training, consulting, or other professional services (other than the standard support services described in this Agreement) that Vendor provides to Customer pursuant to a SOW.

 

17. “Renewal Term” has the meaning set forth in Section 14.1.
18. “Service” or “Services” means the Vendor-hosted, software-as-a-service application(s) and related functionality identified in an applicable Order Form, including any Updates (as defined below) that Vendor generally makes available to its customers, but excluding any Third-Party Services (as defined below) and Professional Services.

 

19. “Service Data” means data related to the provision, use, and performance of the Services, including usage statistics, telemetry, performance metrics, and other data derived from the operation and support of the Services, but not including Customer Data.

 

20. “Service Level Agreement” or “SLA” means the service level commitments and related remedies set forth in Exhibit B (Service Level and Support Services Agreement), as may be updated from time to time in accordance with this Agreement.

 

21. “Service Start Date” means, for each Service, the date set forth as such in the applicable Order Form.

 

22. “SOW” or “Statement of Work” means a written statement of work or similar document executed by the Parties that describes Professional Services to be performed by Vendor, any associated deliverables, the applicable fees, and other related terms, and that expressly references this Agreement.

 

23. “Subscription Term” means, with respect to each Service under an Order Form, the initial term and any Renewal Terms identified in the Order Form, as further described in Section 14.

 

24. “Tennessee Law” means the internal laws of the State of Tennessee, without giving effect to any choice or conflict of laws rules that would require or permit the application of the laws of any other jurisdiction.

 

25. “Third-Party Services” means any software, products, services, or content that are provided by a third party, are not part of the Services, and may interoperate with or be used in connection with the Services (for example, integrations, plug-ins, or applications obtained by Customer from third parties).

 

26. “Updates” means upgrades, enhancements, improvements, new releases, and other modifications to the Services that Vendor may make available generally to its customers at no additional charge. Updates do not include new modules or functionality that Vendor markets and prices separately.

 

27. “Vendor Technology” means, collectively, the Services, Documentation, Service Data, Vendor’s websites, APIs, databases, designs, user interfaces, systems, software, tools, algorithms, templates, and all related technologies, hardware, products, services, materials, and Intellectual Property Rights owned or used by Vendor in connection with the provision of the Services or Professional Services, together with all Updates and modifications thereto.
28. “Work Product” means any reports, configurations, scripts, templates, or other deliverables (excluding the Services and Vendor Technology generally) that Vendor specifically develops for Customer in the course of providing Professional Services and that are expressly identified as “Work Product” in the applicable SOW.

 

29. “Aggregated Data” means data or information derived from Customer Data or Customer’s use of the Services that has been de-identified, anonymized, and/or aggregated in such a manner that neither Customer, any of its Affiliates, nor any individual person can be identified.

 

2. Structure of Agreement; Order Forms and SOWs

1. Master Agreement. This Agreement sets forth the general terms and conditions under which Vendor will provide, and Customer may use, the Services and any Professional Services. The Parties will enter into one or more Order Forms and, if applicable, SOWs that reference this Agreement.

 

2. Order Forms. Each Order Form will specify:

 

1. The Services to be provided (including modules or features),

 

2. The number and type of Authorized Users or other usage metrics,

 

3. The Subscription Term and Service Start Date,

 

4. The Fees and payment schedule,

 

5. Any additional or special terms applicable to that Order Form.

 

3. Each SOW will specify:

 

1. The scope, description, and objectives of the Professional Services,

 

2. Any Work Product or specific deliverables,

 

3. The applicable fees and expenses, and payment milestones,

 

4. Schedules, acceptance criteria, and any assumptions or dependencies.

 

4. Order of Precedence. In the event of any conflict or inconsistency among the terms of this Agreement, any Order Form, any SOW, and any exhibit or schedule, the following order of precedence will apply (in descending order): (a) the main body of this Agreement; (b) the Order Form; (c) the SOW; and (d) any exhibit or schedule to this Agreement, Order Form, or SOW, unless the conflicting document expressly states that it is intended to prevail over this Agreement and is duly executed by both Parties.

 

3. License and Access Rights

1. Grant of Rights. Subject to the terms and conditions of this Agreement and the applicable Order Form, during the applicable Subscription Term Vendor hereby grants to Customer a limited, non-exclusive, non-transferable (except as permitted under Section 21.5), non-sublicensable right for Authorized Users to access and use the Services and Documentation solely:

 

1. For Customer’s and its Affiliates’ internal business purposes,

 

2. In accordance with the Documentation and this Agreement, and

 

3. Within the scope and usage limitations specified in the applicable Order Form.

 

2. Authorized Users. Customer may permit its employees and individual independent contractors acting on its behalf to be Authorized Users; provided that Customer shall:

 

1. Ensure that all Authorized Users comply with this Agreement,

 

2. Be responsible for all acts and omissions of Authorized Users under this Agreement, and

 

3. Be responsible for maintaining the confidentiality and security of usernames, passwords, and other access credentials.

 

3. Evaluation License (Optional). If expressly specified in an Order Form, Vendor may grant Customer a limited, non-exclusive, non-transferable right to access and use the Services on a trial or evaluation basis for the term specified in the Order Form, solely for Customer’s internal evaluation and testing and not for production or commercial use. During any evaluation period, the Services are provided “as is” and Vendor disclaims all warranties and indemnities to the maximum extent permitted by applicable law. Unless Customer timely executes a paid Order Form prior to expiration of the evaluation term, all evaluation access will automatically terminate at the end of such term.

 

4. Reservation of Rights. As between the Parties, Vendor and its licensors expressly reserve all rights, title, and interest in and to the Vendor Technology and all Intellectual Property Rights therein, whether now existing or hereafter created, except for the limited license rights expressly granted to Customer in this Agreement. No rights are granted to Customer hereunder other than as expressly set forth herein.

 

4. Use Restrictions; Acceptable Use

1. Use Restrictions. Customer shall not, and shall ensure that its Authorized Users do not:

 

1. Copy, reproduce, modify, adapt, translate, or create derivative works of the Services or Vendor Technology (except as expressly permitted in the Documentation);

 

2. Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, underlying ideas, algorithms, or structure of the Services or Vendor Technology, except to the limited extent permitted by mandatory applicable law, and then only after providing prior written notice to Vendor;

 

3. License, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time-share, outsource, offer in a service bureau, or otherwise commercially exploit or make the Services or Vendor Technology available to any third party, other than Authorized Users using the Services for Customer’s internal business purposes;

 

4. Access or use the Services to develop or operate products or services that compete with the Services, or for purposes of benchmarking or competitive analysis, or publicly disclose the results of any benchmark tests or other evaluation of the Services without Vendor’s prior written consent;

 

5. Remove, alter, obscure, or otherwise interfere with any proprietary notices (including copyright, trademark, and patent notices) contained in or displayed by the Services, Vendor Technology, or Documentation;

 

6. Use the Services to store, transmit, or distribute any malicious or harmful code, including viruses, worms, Trojan horses, or other similar harmful or deleterious programs;

 

7. Use the Services to store, transmit, or distribute any infringing, libelous, defamatory, obscene, harassing, discriminatory, or otherwise unlawful or tortious material, or to violate the rights of any third party;

 

8. Interfere with or disrupt the integrity, performance, or security of the Services or any data contained therein, or attempt to gain unauthorized access to the Services or related systems or networks;

 

9. Circumvent, disable, or otherwise interfere with any security-related features of the Services or any features that enforce limitations on use of the Services; or

 

10. Use the Services or Vendor Technology in violation of any applicable law, regulation, or third-party right.

11. Customer shall not, and shall not permit any Authorized User or third party to, access or use the Platform (or any portion thereof) for the purpose of:

 

1. Developing, creating, or improving any product, service, or software that competes with or is intended to compete with the Platform or any of Vendor’s offerings; or

 

1. Conducting competitive analysis, benchmarking, performance testing, or other comparative evaluations of the Platform; or

 

• Extracting, copying, or using any ideas, features, functionality, user interfaces, workflows, or other elements of the Platform to build a competing or similar solution; or d. Allowing any direct or indirect competitor of Vendor (or any person or entity acting on behalf of such competitor) to access or use the Platform.

12. Any violation of Section 4 constitutes a material breach of this Agreement. In addition to any other remedies available to Vendor under this Agreement or at law, Vendor may immediately suspend or terminate Customer’s and all Authorized Users’ access to the Platform upon notice of such violation.

 

2. Compliance with Laws. Customer will use the Services in compliance with all applicable laws and regulations, including, without limitation, those relating to data privacy, data security, export control, and telecommunications. Customer shall be solely responsible for ensuring that Customer Data and Customer’s and its Authorized Users’ use of the Services comply with applicable laws.

 

3. Acceptable Use Policy. Vendor may implement and maintain an acceptable use policy (the “AUP”) governing use of the Services. If so, Vendor will provide a copy of the AUP to Customer. Customer’s and its Authorized Users’ use of the Services shall at all times comply with the AUP. Vendor may update the AUP from time to time in its reasonable discretion to address new or emerging abuses or legal requirements, provided that any such updates do not materially diminish Customer’s rights under this Agreement.

 

4. Suspension of Access. Vendor may, without liability and with such notice as is reasonably practicable under the circumstances, suspend Customer’s or any Authorized User’s access to the Services:

 

1. To address a security threat or risk to the Services, Vendor, or any third party,

 

2. To prevent or mitigate actual or suspected fraud or misuse,

 

3. If Customer fails to pay undisputed Fees when due and does not cure such failure within the grace period set out in Section 8.5, or

 

4. If Customer or an Authorized User materially breaches this Agreement or Vendor’s AUP. Vendor will use commercially reasonable efforts to limit the scope and duration of any suspension and to promptly restore access once the underlying issue has been resolved.

 

5. Provision of Services; Implementation

1. Vendor shall:

 

1. Make the Services available to Customer and its Authorized Users in accordance with this Agreement, the applicable Order Forms, and the SLA;

 

2. Use commercially reasonable efforts to provide the Services in a manner consistent with applicable industry standards;

 

3. Provide standard technical support in accordance with the SLA; and

 

4. Provide Updates and improvements to the Services as Vendor may, in its discretion, make generally available to its similarly situated customers.

 

2. Implementation and Configuration. Vendor will use commercially reasonable efforts to perform any initial implementation, configuration, and onboarding services described in the applicable Order Form or SOW to enable Customer’s access to the Services. Customer shall:

 

1. Promptly provide Vendor with all information, access, and cooperation reasonably requested by Vendor to perform such services;

 

2. Ensure the availability of appropriate Customer personnel and resources as reasonably required; and

 

3. Be responsible for any delays in implementation resulting from Customer’s acts or omissions.

 

3. Customer Systems and Connectivity. Customer is solely responsible for:

 

1. Obtaining, maintaining, and securing all hardware, software, equipment, and network connectivity necessary for Customer and its Authorized Users to access and use the Services;

 

2. Configuring its systems to interoperate with the Services;

 

3. Maintaining the security of its own systems, networks, and credentials.

 

4. Vendor may monitor Customer’s use of the Services internally, including for the purposes of:

 

1. Providing and improving the Services;

 

2. Ensuring compliance with the Agreement, the AUP, and usage limitations set forth in an Order Form;

 

3. Security and operational integrity.

 

6. Service Levels; Support; Availability

1. Service Levels. Vendor shall provide the Services in accordance with the availability commitments and performance metrics set forth in Exhibit B (Service Level and Support Services Agreement). The SLA will specify:

 

1. The applicable uptime percentage and measurement period,

 

2. Excluded downtime and maintenance windows,

 

3. Service credits or other remedies available in the event of Vendor’s failure to meet applicable service levels,

 

4. Any chronic failure provisions.

 

2. Support Services. During the Subscription Term, Vendor shall provide Customer with standard technical support for the Services in accordance with Exhibit B, which will address, at a minimum:

 

1. Support hours and contact methods,

 

2. Severity levels and response time targets,

 

3. Escalation procedures,

 

4. Exclusions from support.

 

3. Service Credits. Service credits, if any, shall be calculated and applied as set forth in Exhibit B. Unless expressly stated otherwise in Exhibit B:

 

1. Service credits will be applied to future invoices and will not be redeemable for cash,

 

2. Service credits shall be Customer’s sole and exclusive remedy for Vendor’s failure to meet applicable service levels, subject to any chronic failure termination right set forth in Exhibit B.

 

4. Modification of SLA. Vendor may update the SLA from time to time, provided that any such updates:

 

1. Do not materially reduce the overall level of service or support commitments applicable to Customer during the then-current Subscription Term, and

 

2. Are communicated to Customer in writing or through the Services with reasonable advance notice for any material changes.

 

7. Data Protection and Security

1. Customer Data Ownership. As between the Parties, Customer retains all right, title, and interest (including all Intellectual Property Rights) in and to Customer Data. Vendor and its Affiliates shall have no rights in or to Customer Data except the limited rights expressly granted in this Agreement.

 

2. Vendor Use of Customer Data. Customer hereby grants Vendor and its Affiliates a non-exclusive, worldwide, royalty-free, fully paid-up right and license, during the Term of this Agreement:

 

1. To host, store, copy, process, transmit, display, and otherwise use Customer Data as reasonably necessary to provide, maintain, secure, and improve the Services and to perform Vendor’s obligations under this Agreement;

 

2. To disclose Customer Data to subcontractors and sub-processors as necessary to provide the Services, subject to the requirements of this Agreement.

 

3. Aggregated Data and Service Data. Vendor may collect, use, and disclose Aggregated Data and Service Data:

 

1. For purposes of operating, analyzing, improving, supporting, and marketing the Services and other Vendor offerings;

 

2. For creating and publishing industry benchmarks and statistical analyses; and

 

3. For any other lawful business purpose, provided that such Aggregated Data and Service Data do not identify Customer, any of its Affiliates, or any individual.

 

4. Security Measures. Vendor shall implement and maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Customer Data, including measures that:

 

1. Are consistent with generally accepted industry standards for SaaS providers of comparable size and resources;

 

2. Include access controls, encryption of data in transit over public networks, regular vulnerability management, logging and monitoring, and procedures for regular testing and evaluation of the effectiveness of security measures;

 

3. Are described in more detail in Vendor’s written information security policy, a summary of which Vendor shall make available to Customer upon reasonable request.

 

5. Data Processing Agreement. To the extent Vendor processes Personal Data on behalf of Customer in connection with the Services, the data processing terms set forth in Exhibit A (Data Processing Addendum) shall apply and are incorporated into this Agreement by reference. In the event of any conflict between the main body of this Agreement and Exhibit A with respect to the processing of Personal Data, Exhibit A shall control.

 

6. Sub-Processors and Subcontractors. Vendor may engage third-party subcontractors (including sub-processors of Personal Data) to perform certain Services-related functions, provided that:

 

1. Vendor remains responsible for the performance of such subcontractors and for their compliance with Vendor’s obligations under this Agreement;

 

2. Vendor imposes written obligations on such subcontractors that are at least as protective of Customer Data as the obligations set forth in this Agreement;

 

3. Vendor maintains a list of its current sub-processors for the Services and, upon Customer’s written request, will provide such list; Vendor will notify Customer of material changes to that list and provide Customer a reasonable opportunity, where required by applicable law, to object to the appointment of a new sub-processor on reasonable grounds.

 

7. Security Incidents. In the event Vendor becomes aware of a confirmed unauthorized access to, or acquisition of, unencrypted Customer Data in Vendor’s possession or control that compromises the confidentiality, security, or integrity of such Customer Data (a “Security Incident”), Vendor will:

 

1. Without undue delay and in any event within the time period required by applicable law, notify Customer of the Security Incident, including, to the extent then known, a description of the nature of the incident, the type of data affected, and the steps Vendor is taking to mitigate and remediate the incident;

 

2. Take all commercially reasonable steps to contain, investigate, and remediate the Security Incident;

 

3. Cooperate reasonably with Customer in Customer’s investigation of the Security Incident, including providing relevant information and assistance reasonably requested (subject to Vendor’s security and confidentiality obligations to other customers);

 

4. Not publicly disclose or notify any third party regarding the Security Incident that references Customer without Customer’s prior written consent, except as required by applicable law or regulatory authority.

 

8. Data Backup and Disaster Recovery. Vendor shall maintain appropriate data backup procedures and disaster recovery and business continuity plans designed to enable timely restoration of the Services and Customer Data in the event of a disaster or material service interruption. Vendor will test such plans on a commercially reasonable periodic basis and, upon Customer’s written request, provide a high-level summary of such plans and recent testing.

 

8. Fees and Payment Terms

1. Fees. Customer shall pay Vendor all Fees specified in the applicable Order Form (or, if no Order Form exists, as reflected in the Platform or Vendor’s then-current pricing schedule) in accordance with this Agreement. Unless otherwise expressly stated, Fees are:a. Based on the Services and actual usage, including without limitation the number of assets (e.g., drivers, vehicles, or accounts), subscription tier, and any screening or other transactional services ordered through the Platform;b. Non-cancelable and, except as expressly provided in this Agreement, non-refundable.

2. Invoicing and Payment. Unless otherwise specified in an Order Form or agreed in writing: a. Subscription Fees will be invoiced monthly in arrears; b. Fees for screening services, managed services, or other usage-based services will be invoiced monthly in arrears based on actual usage during the prior month;

c. All invoices are due and payable upon receipt; d. Vendor may automatically draft or charge Customer’s designated credit card, ACH, or other payment method for all amounts due. Customer authorizes Vendor to process such payments                       between the 5th and 10th day of each month (or as otherwise agreed). Customer shall maintain valid and current payment information in the Platform at all times.

3. Taxes. All Fees are exclusive of any sales, use, excise, value-added, goods and services, consumption, and other similar taxes, duties, or charges of any kind imposed by any governmental or regulatory authority (collectively, “Taxes”). Customer shall be responsible for and pay all such Taxes associated with its purchases under this Agreement (excluding taxes based on Vendor’s net income, property, or employees). If Vendor has the legal obligation to collect and remit such Taxes, Vendor will invoice Customer for the appropriate amount and Customer shall pay such amounts, unless Customer timely provides Vendor with a valid tax exemption certificate.
4. Overdue Payments. Any undisputed Fees not paid when due shall accrue interest at the lesser of:

a. one and one-half percent (1.5%) per month; or b, the maximum rate permitted by applicable law, from the due date until paid in full. Customer shall reimburse Vendor for all reasonable costs (including reasonable attorneys’ fees) incurred in                  collecting any overdue undisputed amounts.

5. Disputed Amounts. Customer may in good faith dispute an invoiced amount by providing written notice of such dispute and reasonable supporting details to Vendor within thirty (30) days after the invoice date. Customer shall pay all undisputed amounts when due and may withhold payment of the disputed portion of the invoice pending resolution. The Parties shall work in good faith to resolve any such dispute promptly. Failure to dispute an invoice in writing within such thirty (30)-day period shall be deemed acceptance of the invoice and waiver of any claim relating thereto.
6. Changes in Usage / True-Up. If Customer’s actual usage exceeds the quantity or tier purchased, Vendor may invoice Customer for the excess usage at the rates set forth in the Order Form or Vendor’s then-current standard rates. Vendor may also require Customer to upgrade its subscription tier via an updated Order Form or Platform adjustment for the remainder of the Subscription Term.
7. Price Adjustments. Vendor may adjust the Fees for the Services (including subscription rates and per-screening or per-asset fees) from time to time in its discretion. Vendor will provide Customer with at least thirty (30) days’ prior written notice of any price increase. Any price increase will become effective at the start of the next Subscription Term (or renewal period), unless otherwise stated in the notice.

8. No Setoff. Customer shall not set off, offset, recoup, or withhold any amounts owed under this Agreement for any reason (including disputes) except as expressly permitted in Section 8.5.

9. Proprietary Rights

1. Vendor Technology. As between the Parties, Vendor owns all right, title, and interest, including all Intellectual Property Rights, in and to the Vendor Technology. Nothing in this Agreement conveys to Customer any ownership or proprietary interest in the Vendor Technology.
2. Customer Data. As between the Parties, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to Customer Data. Vendor acquires no rights in or to Customer Data other than the limited license rights expressly granted to Vendor in this Agreement.
3. Work Product. The ownership of Work Product shall be as specified in the applicable SOW. Unless expressly stated otherwise in the SOW: 1. Vendor shall retain all right, title, and interest (including all Intellectual Property Rights) in and to any Work Product, and 2. Vendor hereby grants Customer a non-exclusive, worldwide, perpetual, irrevocable, royalty-free license to use, reproduce, display, and internally distribute such Work Product solely in connection with Customer’s authorized use of the Services.
4. Feedback. Customer may, but is not obligated to, provide Feedback to Vendor. Customer hereby grants Vendor and its Affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to use and exploit such Feedback in any manner for any purpose, including to develop and improve the Services and other Vendor offerings, without any obligation or compensation to Customer or any Authorized User.
5. Third-Party Services. If Customer elects to use or enable any Third-Party Services with the Services: 1. Any exchange of data between Customer and such third party is solely between Customer and such third party and is subject to the terms and conditions governing such Third-Party Services; 2. Vendor is not responsible or liable for any Third-Party Services, including their security, performance, or compliance with applicable law; and 3. Vendor shall not be responsible for any disclosure, modification, or deletion of Customer Data resulting from access by such Third-Party Services.

10. Confidentiality

1. Definition. “Confidential Information” means any non-public, proprietary, or confidential information disclosed by or on behalf of one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether orally or in writing, and whether or not marked or designated as confidential at the time of disclosure, including:

 

1. Trade secrets, know-how, inventions, techniques, processes, software (including object and source code), algorithms, designs, schematics, architecture, and technical information;

 

2. Business, financial, pricing, marketing, product, and sales information, customer and supplier lists, and business plans;

 

3. Customer Data (as Confidential Information of Customer) and non-public aspects of the Services and Vendor Technology (as Confidential Information of Vendor);

 

4. The terms and conditions of this Agreement and any Order Form or SOW (as Confidential Information of both Parties).

 

2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate:

 

1. Is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;

 

2. Was known to the Receiving Party prior to its disclosure by the Disclosing Party without restriction on use or disclosure;

 

3. Is received from a third party without breach of any obligation of confidentiality owed to the Disclosing Party;

 

4. Is independently developed by the Receiving Party without use of or reference to any Confidential Information of the Disclosing Party.

 

3. Confidentiality Obligations. The Receiving Party shall:

 

1. Use the Confidential Information of the Disclosing Party solely as necessary to perform its obligations or exercise its rights under this Agreement;

 

2. Not disclose such Confidential Information to any third party, except as expressly permitted in this Agreement;

 

3. Protect the confidentiality of such Confidential Information using at least the same degree of care it uses to protect its own similar information, but in no event less than a reasonable degree of care;

 

4. Limit access to such Confidential Information to its and its Affiliates’ employees, contractors, and professional advisors who have a legitimate need to know the information for purposes of this Agreement and who are bound by written confidentiality obligations at least as protective as those set forth in this Agreement.

 

4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by a valid court order, subpoena, or other governmental authority, provided that, to the extent legally permitted:

 

1. The Receiving Party promptly notifies the Disclosing Party in writing of such requirement;

 

2. The Receiving Party cooperates reasonably with the Disclosing Party (at the Disclosing Party’s expense) in seeking a protective order or other appropriate remedy; and

 

3. The Receiving Party discloses only that portion of the Confidential Information that is legally required to be disclosed.

 

5. Injunctive Relief. Each Party acknowledges that unauthorized disclosure or use of the other Party’s Confidential Information may cause irreparable harm for which monetary damages may be an inadequate remedy. Accordingly, in addition to any other rights and remedies available at law or in equity, the Disclosing Party shall be entitled to seek immediate injunctive or other equitable relief to prevent or curtail any actual or threatened breach of this Section 10, without the necessity of posting bond or proving actual damages.

 

6. Return or Destruction. Upon termination or expiration of this Agreement, or upon the Disclosing Party’s earlier written request, the Receiving Party shall promptly return or, at the Disclosing Party’s option, securely destroy all copies of the Disclosing Party’s Confidential Information in the Receiving Party’s possession or control, except that the Receiving Party may retain:

 

1. Copies as required by law or regulatory authority; and

 

2. Archival copies maintained in automated backup systems, provided that such retained Confidential Information remains subject to the confidentiality obligations herein until destroyed.

11. Warranties; Disclaimers

1. Mutual Warranties. Each Party represents and warrants that:

 

1. It is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization;

 

2. It has the full corporate power and authority to enter into this Agreement and to carry out its obligations hereunder;

 

3. This Agreement has been duly authorized, executed, and delivered by it and constitutes its legal, valid, and binding obligation, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, and similar laws and general principles of equity.

 

2. Vendor Warranties. Vendor further represents and warrants that:

 

1. During the applicable Subscription Term, the Services will materially conform to the applicable Documentation and the descriptions set forth in the applicable Order Forms and SLA, when used by Customer in accordance with this Agreement and the Documentation;

 

2. Vendor will perform any Professional Services in a professional and workmanlike manner, in accordance with generally accepted industry standards for similar services;

 

3. Vendor has and will maintain all rights, licenses, consents, and permissions necessary to grant the rights and licenses granted herein and to provide the Services as contemplated by this Agreement.

 

3. Customer Warranties. Customer represents and warrants that:

 

1. Customer has and will maintain all rights, licenses, consents, and permissions necessary to provide Customer Data for use in accordance with this Agreement;

 

2. Customer will not submit to the Services any Customer Data that it does not have the lawful right to process or transmit, or that otherwise violates the rights of any third party or applicable law; and

 

3. Customer will use the Services only in accordance with this Agreement, the Documentation, and applicable law.

 

4. Remedies for Breach of Warranties. In the event of a breach of Vendor’s warranties in Section 11.2:

 

1. Vendor shall, at its sole cost and expense and as Customer’s sole and exclusive remedy: 1. Use commercially reasonable efforts to correct or repair the nonconforming Services or re-perform the nonconforming Professional Services; or

2. If Vendor determines, in its reasonable discretion, that such correction, repair, or re-performance is not commercially feasible, Vendor may terminate the affected Order Form or SOW and refund to Customer any pre-                     paid, unused Fees applicable to the terminated portion of the Services or Professional Services. 2. Customer must provide Vendor with prompt written notice of the alleged nonconformity within thirty (30) days after discovery and reasonable detail regarding such nonconformity.

5. Disclaimers. Except as expressly provided in this Agreement:1. Vendor disclaims all warranties, whether express, implied, statutory, or otherwise, including any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, or quiet enjoyment, and any warranties arising out of course of dealing or usage of trade;2. Vendor does not warrant that the Services will be error-free, uninterrupted, or completely secure, or that all defects will be corrected;3. Vendor is not responsible for any issues or delays resulting from Customer’s systems, networks, or Third-Party Services.

12. Indemnification

1. Vendor Indemnification. Vendor shall defend (or, at Vendor’s option, settle), indemnify, and hold harmless Customer and its Affiliates, and their respective officers, directors, and employees (collectively, the “Customer Indemnified Parties”), from and against any third-party claims, demands, suits, or proceedings (collectively, “Claims”) and any resulting damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) to the extent arising out of:

 

1. Any allegation that the Services, as provided by Vendor and used by Customer in accordance with this Agreement, infringe any United States patent, copyright, or trademark, or misappropriate any trade secret of a third party;

 

2. Vendor’s gross negligence or willful misconduct in connection with this Agreement;

 

3. Vendor’s violation of applicable law in providing the Services.

 

2. Exclusions from Vendor Indemnity. Vendor shall have no indemnification obligation under Section 12.1 to the extent a Claim arises from or relates to:

 

1. Use of the Services by Customer in combination with any software, hardware, system, data, or other materials not provided by Vendor, if the Claim would not have arisen but for such combination;

 

2. Modification of the Services by any person other than Vendor or its authorized representatives, if the Claim would not have arisen but for such modification;

 

3. Customer’s failure to use the then-current version or release of the Services made available by Vendor, if the Claim would not have arisen but for such failure;

 

4. Customer Data or Third-Party Services;

 

5. Use of the Services in breach of this Agreement, the Documentation, or applicable law.

 

3. Infringement Remedies. If the Services (or any component thereof) become, or in Vendor’s reasonable opinion are likely to become, the subject of an infringement Claim, Vendor may, at its sole option and expense:

 

1. Procure for Customer the right to continue using the affected Services;

 

2. Replace or modify the affected Services so that they are non-infringing but functionally equivalent in all material respects; or

 

3. If Vendor reasonably determines that options (1) and (2) are not commercially feasible, terminate the affected Order Form and refund to Customer any pre-paid, unused subscription Fees for the terminated Services.

 

4. Customer Indemnification. Customer shall defend (or, at Customer’s option, settle), indemnify, and hold harmless Vendor and its Affiliates, and their respective officers, directors, and employees (collectively, the “Vendor Indemnified Parties”), from and against any Claims and resulting damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) to the extent arising out of:

 

1. Customer Data (including any allegation that Customer Data infringes or violates any third-party rights or applicable law);

 

2. Customer’s or any Authorized User’s use of the Services in breach of this Agreement or applicable law;

 

3. Customer’s gross negligence or willful misconduct in connection with this Agreement.

 

5. Indemnification Procedures. The indemnifying Party’s obligations under this Section 12 are conditioned on the indemnified Party:

 

1. Promptly providing the indemnifying Party with written notice of any Claim (provided that any delay in notice will not relieve the indemnifying Party of its obligations except to the extent it is prejudiced by such delay);

 

2. Granting the indemnifying Party sole control over the defense and settlement of the Claim (except that the indemnifying Party may not enter into any settlement that admits fault or imposes any monetary or non-monetary obligation on the indemnified Party, other than the payment of money fully indemnified hereunder, without the indemnified Party’s prior written consent, not to be unreasonably withheld or delayed);

 

3. Providing the indemnifying Party with reasonable assistance and cooperation at the indemnifying Party’s expense.

 

6. Exclusive Remedies. This Section 12 states the indemnifying Party’s sole and exclusive liability, and the indemnified Party’s sole and exclusive remedies, for any third-party Claims described in this Section 12.

13. Limitation of Liability

1. Exclusion of Certain Damages. To the maximum extent permitted by applicable law, neither Party shall be liable to the other Party for any indirect, incidental, consequential, special, exemplary, or punitive damages (including loss of profits, loss of revenue, loss of data, or business interruption), arising out of or relating to this Agreement, even if such Party has been advised of the possibility of such damages, and regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise.

 

2. General Aggregate Cap. Except as set forth in Section 13.3, and to the maximum extent permitted by applicable law, the aggregate cumulative liability of each Party and its Affiliates arising out of or relating to this Agreement, whether in contract, tort (including negligence), strict liability, or otherwise, shall not exceed, in the aggregate, the total Fees paid or payable by Customer to Vendor under this Agreement for the Services giving rise to the claim during the twelve (12) month period immediately preceding the event giving rise to such liability.

 

3. Enhanced Cap for Certain Claims. Notwithstanding Section 13.2, the aggregate cumulative liability of Vendor and its Affiliates arising out of or relating to:

 

1. Vendor’s indemnification obligations under Section 12.1 (infringement) and 12.1.2–12.1.3, and

 

2. Vendor’s breach of its obligations with respect to Security Incidents under Section 7.7, shall not exceed two (2) times the cap set forth in Section 13.2 with respect to the Services giving rise to such liability.

 

4. Excluded Claims from Cap. The limitations in Section 13.2 shall not apply to:

 

1. A Party’s payment obligations under Section 8 (Fees and Payment Terms);

 

2. A Party’s obligations to indemnify the other Party under Section 12 for third-party claims, to the extent expressly stated in Section 13.3;

 

3. A Party’s breach of its confidentiality obligations under Section 10 (but only to the extent such breach is the result of willful misconduct or gross negligence);

 

4. A Party’s fraud or willful misconduct.

 

5. Basis of the Bargain. The Parties acknowledge that the limitations, exclusions, and disclaimers of liability set forth in this Agreement are an essential basis of the bargain between the Parties, and that, absent such limitations, the economic terms of this Agreement would be substantially different.

14. Term and Termination

1. Term of Agreement. This Agreement shall commence on the Effective Date and shall continue in effect until terminated in accordance with this Section 14 (the “Term”). The initial term of this Agreement shall be three (3) years from the Effective Date (the “Initial Term”), unless otherwise specified in the first Order Form. Thereafter, this Agreement shall automatically renew for successive one (1)-year renewal terms (each, a “Renewal Term”) unless either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the end of the then-current Term.

 

2. Term of Order Forms and SOWs. Each Order Form and SOW will have an initial term and, if applicable, renewal term(s) as specified in such Order Form or SOW. No Order Form or SOW may extend beyond the Term of this Agreement; upon expiration or termination of this Agreement, all outstanding Order Forms and SOWs shall automatically terminate, except as expressly provided otherwise in this Agreement.

 

3. Termination for Cause. Either Party may terminate this Agreement, any Order Form, and/or any SOW upon written notice to the other Party if:

 

1. The other Party materially breaches this Agreement, such Order Form, or such SOW and fails to cure such breach within thirty (30) days after receiving written notice describing the breach in reasonable detail (or, if such breach is not reasonably capable of cure within thirty (30) days, fails to promptly commence and diligently pursue a cure); or
2. Vendor may Terminate the agreement if it is determined that Customer has violated governmental regulations, or acted in an unprofessional manner. Determination of government regulation violations and/or acting in an unprofessional manner shall be at the sole discretion of the Vendor.

 

3. The other Party becomes insolvent, files a petition in bankruptcy, has a receiver appointed for it, or otherwise ceases to conduct business in the ordinary course; in such case, termination may be immediate upon written notice.

 

4. Termination for Chronic Service Level Failure. If the SLA provides a chronic failure termination right and the conditions for such right are satisfied, Customer may terminate the affected Order Form upon written notice to Vendor in accordance with the SLA. Any prepaid, unused subscription Fees for the terminated portion of the affected Service shall be refunded to Customer.

 

5. Termination for Convenience. Unless otherwise specified in an Order Form or SOW, neither Party may terminate this Agreement, an Order Form, or a SOW for convenience during its then-current term, except by electing not to renew in accordance with Section 14.1.

 

6. Effect of Termination or Expiration. Upon expiration or termination of this Agreement or an Order Form:

 

1. All rights and licenses granted to Customer with respect to the terminated Services shall immediately cease;

 

2. Customer shall promptly stop all access to and use of the terminated Services;

 

3. Customer shall pay Vendor all Fees due and payable under this Agreement and any applicable Order Forms or SOWs up to the effective date of termination (subject to any applicable refund provisions);

 

4. Each Party shall return or destroy the other Party’s Confidential Information in accordance with Section 10.6.

 

7. Data Return and Deletion. For a period of thirty (30) days following the effective date of termination or expiration of the applicable Order Form for any Service, upon Customer’s written request received prior to the end of such period, Vendor shall make available to Customer a one-time export of Customer Data stored in the Services in a commercially reasonable, industry-standard format (for example, CSV or JSON). After such thirty (30)-day period:

 

1. Vendor will have no obligation to maintain or provide Customer Data, and may thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, subject to any legal retention requirements;

 

2. Vendor may retain archival copies as required by law or for legitimate business purposes (such as audit or compliance) provided that such copies remain subject to the confidentiality obligations herein.

 

8. The following provisions shall survive any expiration or termination of this Agreement: Sections 1, 2.4, 4, 7.3, 7.7, 7.8, 8.1–8.7, 9, 10, 11.5, 12, 13, 14.6–14.8, 15, 17, 18, 19, 20, and 21, and any other provisions that by their nature are intended to survive.

15. Data Privacy; Data Processing Addendum

1. Roles of the Parties. The Parties acknowledge that, with respect to Personal Data processed in connection with the Services:

 

1. Customer is the “controller” or “business” (or equivalent term) and

 

2. Vendor is the “processor” or “service provider” (or equivalent term), as such terms are defined under applicable data protection laws.

 

2. Data Processing Addendum. The Parties agree to comply with the data processing terms set forth in Exhibit A (Data Processing Addendum), which:

 

1. Describes the subject matter, duration, nature, and purpose of the processing;

 

2. Specifies the categories of data subjects and types of Personal Data processed;

 

3. Sets out Vendor’s obligations as a processor or service provider, including with respect to data security, sub-processors, international transfers, and data subject requests.

 

3. International Transfers. To the extent Vendor transfers Personal Data originating in the European Economic Area, the United Kingdom, or other jurisdictions with data transfer restrictions to the United States or other third countries, Vendor will implement appropriate safeguards (such as standard contractual clauses or other approved transfer mechanisms) as required by applicable data protection laws, as further described in Exhibit A.

16. Professional Services

1. From time to time, Customer may request, and Vendor may agree to perform, Professional Services as described in one or more SOWs executed by the Parties.

 

2. Vendor will perform Professional Services in a professional and workmanlike manner, using personnel with appropriate skills and experience.

 

3. Customer Responsibilities. Customer shall:

 

1. Provide Vendor with all information, access, cooperation, and assistance reasonably needed for Vendor to perform the Professional Services;

 

2. Designate a project manager to act as primary liaison with Vendor;

 

3. Be responsible for any delays in performance caused by Customer’s acts or omissions.

 

4. If an SOW specifies acceptance criteria or procedures for Work Product or deliverables, such criteria and procedures shall apply. If no acceptance criteria are specified, Professional Services and any Work Product will be deemed accepted upon delivery unless Customer notifies Vendor in writing within ten (10) Business Days of delivery, identifying in reasonable detail any material deficiencies.

 

5. Change Control. Changes to the scope of Professional Services under a SOW shall be documented in a written change order or amendment to the SOW, executed by both Parties, specifying the changes and any associated adjustments to fees, schedule, or assumptions.

17. Insurance

1. During the Term, Vendor shall, at its own expense, maintain insurance policies with financially sound and reputable insurers, including:

 

1. Commercial general liability insurance;

 

2. Errors and omissions / technology professional liability insurance;

 

3. Cyber liability / network security and privacy liability insurance; in commercially reasonable coverage amounts consistent with industry standards for SaaS vendors of similar size and risk profile.

 

2. Certificates of Insurance. Upon Customer’s written request not more than once annually, Vendor shall provide Customer with a certificate of insurance evidencing the coverage required under this Section 17.

 

3. Notice of Cancellation or Material Change. Vendor shall use commercially reasonable efforts to provide Customer with prompt written notice of any cancellation, non-renewal, or material reduction in the scope or coverage limits of the insurance policies required under this Section 17.

18. Audit and Compliance

1. Security and Compliance Reports. Upon Customer’s reasonable written request, Vendor shall provide Customer with:

 

1. A summary of its most recent third-party security assessments or certifications (for example, a SOC 2 Type II report or ISO 27001 certification), to the extent available; and

 

2. A high-level summary of its information security and data protection policies.

 

2. Audit Rights. Solely with respect to Vendor’s processing of Personal Data or compliance with security obligations under this Agreement:

 

1. Customer (or its independent third-party auditor, bound by confidentiality obligations) may, not more than once annually and upon at least thirty (30) days’ prior written notice, conduct a reasonable audit or inspection of Vendor’s facilities, systems, and records related to the Services, during normal business hours and in a manner that does not unreasonably disrupt Vendor’s operations;

 

2. Customer shall bear all costs of any such audit, unless such audit reveals a material breach by Vendor of its obligations under this Agreement or applicable data protection laws, in which case Vendor shall reimburse Customer for reasonable out-of-pocket audit costs.

 

3. Vendor shall not be required to:

 

1. Disclose information or records of its other customers;

 

2. Permit access to data centers or systems where such access would compromise the security or confidentiality of other customers’ data or Vendor’s proprietary information;

 

3. Disclose information that is subject to attorney-client privilege or constitutes Vendor’s trade secrets. In such cases, Vendor shall use reasonable efforts to provide alternative information sufficient to demonstrate compliance.

19. Force Majeure; Business Continuity

1. Force Majeure. Neither Party shall be liable for any delay or failure in performance (except for payment obligations) to the extent caused by a Force Majeure Event, which means an event beyond the reasonable control of the affected Party, including acts of God, natural disasters, pandemics, epidemics, war, terrorism, riots, civil unrest, governmental actions, labor strikes (excluding those involving only the affected Party’s own workforce), failures or outages of the public internet or third-party hosting providers, or other similar events.

 

2. Notice and Mitigation. The affected Party shall:

 

1. Promptly notify the other Party in writing of the occurrence of a Force Majeure Event and its expected duration;

 

2. Use commercially reasonable efforts to mitigate the effects of the Force Majeure Event and resume performance as soon as reasonably practicable.

 

3. Extended Force Majeure. If a Force Majeure Event prevents a Party from performing its material obligations under this Agreement for a continuous period of thirty (30) days or more, the other Party may terminate the affected Order Form or, if the Force Majeure Event materially affects the entire Agreement, this Agreement, upon ten (10) days’ prior written notice, without liability other than payment for Services actually provided prior to the effective date of termination.

 

4. Business Continuity and Disaster Recovery. Vendor shall maintain business continuity and disaster recovery plans designed to enable recovery of the Services within commercially reasonable timeframes following a disaster or major system outage. Vendor shall review and update such plans periodically and test them at commercially reasonable intervals.

20. Governing Law; Dispute Resolution

1. Governing Law. This Agreement, and any dispute arising out of or relating to this Agreement, shall be governed by and construed in accordance with Tennessee Law.

 

2. Dispute Resolution; Escalation. The Parties shall attempt in good faith to resolve any dispute, controversy, or claim arising out of or relating to this Agreement (a “Dispute”) promptly by negotiation between executives who have authority to settle the Dispute. If the Parties are unable to resolve the Dispute within thirty (30) days after written notice of the Dispute is first given by one Party to the other, either Party may pursue the remedies set forth in Section 20.3.

 

3. Venue; Jurisdiction. The Parties agree that any litigation or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in Putnam County, Tennessee. Each Party hereby:

 

1. Submits to the exclusive jurisdiction of such courts;

 

2. Waives any objection to venue in such courts based on forum non conveniens or otherwise;

 

3. Waives any right to a jury trial in any such proceeding, to the extent permitted by applicable law.

 

4. Equitable Relief. Notwithstanding the foregoing, either Party may seek temporary, preliminary, or permanent injunctive or other equitable relief in any court of competent jurisdiction to prevent or curtail actual or threatened breaches of confidentiality obligations, Intellectual Property Rights, or other obligations that may cause irreparable harm.

21. Non-Solicitation of Employees

1. During the term of agreement and for a period of 24 months following the termination of it for any reason, the Customer shall not, directly or indirectly, solicit, hire, recruit, or encourage any employee, consultant, or independent contractor of the Vendor to leave the employment or engagement of the Vendor.

 

22. Miscellaneous

1. Independent Contractors. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, fiduciary, or employment relationship between the Parties. Neither Party has authority to bind the other Party or incur obligations on its behalf.

 

2. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement shall be in writing and shall be deemed given:

 

1. When delivered personally;

 

2. When sent by confirmed email (provided that a copy is also sent by another permitted method);

 

3. On the next Business Day after being sent by a reputable overnight courier service; or

 

4. On the fifth (5th) day after being mailed by certified or registered mail, return receipt requested, in each case to the Parties at their addresses set forth in the preamble (or to such other address as a Party may designate by notice to the other in accordance with this Section 22.2).

 

3. Entire Agreement. This Agreement, together with all Order Forms, SOWs, and exhibits attached hereto or incorporated by reference, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning such subject matter.

 

4. No amendment or modification of this Agreement, any Order Form, or any SOW shall be effective unless it is in writing and signed by authorized representatives of both Parties. Vendor may update the SLA and AUP as provided herein.

 

5. Neither Party may assign or transfer this Agreement, in whole or in part, without the prior written consent of the other Party, except that:

 

1. Either Party may assign this Agreement, without such consent, to an Affiliate or in connection with a merger, consolidation, corporate reorganization, or sale of all or substantially all of its assets or business related to this Agreement, provided that the assignee agrees in writing to be bound by the terms of this Agreement; and

 

2. Vendor may assign its right to receive payments hereunder to a third-party financing or factoring company, with notice to Customer. Any attempted assignment in violation of this Section 22.5 shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

 

6. No Third-Party Beneficiaries. Except as expressly set forth in this Agreement with respect to the Parties’ Affiliates and indemnified parties, nothing in this Agreement is intended to confer any rights or remedies on any person or entity other than the Parties and their respective successors and permitted assigns.

 

7. No waiver by any Party of any breach or default of any provision of this Agreement shall be effective unless in writing and signed by an authorized representative of such Party. No waiver of any breach or default shall be deemed a waiver of any subsequent breach or default.

 

8. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be deemed modified to the minimum extent necessary to make it valid and enforceable, and the remaining provisions shall remain in full force and effect.

 

9. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

 

10. Counterparts; Electronic Signatures. This Agreement, and any Order Form or SOW, may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures delivered by facsimile, PDF, or other electronic means shall be deemed to be original.

 

11. Export Compliance. Customer shall not, and shall ensure its Authorized Users do not, export, re-export, or release the Services, Vendor Technology, or any related technical data or information to any jurisdiction or person to which export, re-export, or release is prohibited under applicable export control laws. Customer shall be solely responsible for compliance with such laws.

 

12. Compliance with Laws. Each Party shall comply with all laws and regulations applicable to its conduct under this Agreement, including, without limitation, anti-corruption, anti-bribery, and data protection laws.

 

13. With Customer’s prior written consent (not to be unreasonably withheld), Vendor may identify Customer as a customer of Vendor and use Customer’s name and logo in Vendor’s customer lists and marketing materials. Any other public announcements or press releases concerning this Agreement shall require the prior written consent of both Parties.

 

14. Remedies Cumulative. Except as expressly provided otherwise in this Agreement, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies it may have at law or in equity.

 

15. The Parties acknowledge that they have read and understood this Agreement and that this Agreement has been negotiated by the Parties with the benefit of counsel. Accordingly, any rule of construction that any ambiguities are to be resolved against the drafting Party shall not be applied in the interpretation of this Agreement.

  __________________________________________________________________________________________________________________________________________________________________________

Exhibit A

Data Processing Addendum

This Data Processing Addendum (this “DPA”) forms part of the Agreement between Vendor and Customer.  

1. Subject Matter and Duration. Vendor will process Personal Data on behalf of Customer solely for the purpose of providing the Services under the Agreement and for the duration of the Agreement, except as otherwise required by applicable law.

 

2. Nature and Purpose of Processing. The nature and purpose of the processing of Personal Data by Vendor include hosting, storage, transmission, access, and analysis of Personal Data as necessary to provide, maintain, secure, and improve the Services and to perform Vendor’s obligations under the Agreement.

 

3. Categories of Data Subjects. Data subjects may include Customer’s employees, contractors, customers, clients, and other individuals whose Personal Data is included in Customer Data.

 

4. Types of Personal Data. Personal Data may include identification data (such as names, contact details, job titles), usage data, and any other Personal Data that Customer chooses to submit to the Services, excluding special categories of data unless expressly permitted in writing.

 

5. Customer Instructions. Vendor shall process Personal Data only on documented instructions from Customer, including with regard to transfers of Personal Data to a third country, unless required to do so by applicable law. Vendor will inform Customer if, in its opinion, an instruction infringes applicable data protection law.

 

6. Confidentiality. Vendor shall ensure that all persons authorized to process Personal Data are subject to confidentiality obligations at least as strict as those set forth in the Agreement.

 

7. Security Measures. Vendor shall implement and maintain appropriate technical and organizational measures to protect Personal Data as required by applicable data protection law and as described in Section 7 of the Agreement.

 

8. Sub-Processors. Vendor may engage sub-processors as described in Section 7.6 of the Agreement. Vendor shall ensure that any sub-processor is bound by a written contract that imposes obligations on the sub-processor which are no less protective of Personal Data than those set out in this DPA.

 

9. Data Subject Rights. Taking into account the nature of the processing, Vendor shall assist Customer, by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Customer’s obligations to respond to data subjects’ requests to exercise their rights under applicable data protection laws.

 

10. Data Breach Notification. Vendor shall notify Customer without undue delay after becoming aware of a Security Incident involving Personal Data and shall provide information and cooperation as required by applicable data protection laws and as further described in Section 7.7 of the Agreement.

 

11. Data Protection Impact Assessments. Vendor shall provide reasonable assistance to Customer, at Customer’s expense, with any data protection impact assessments and prior consultations with supervisory authorities that Customer reasonably considers necessary and that relate to the Services.

 

12. International Transfers. Where Vendor transfers Personal Data from jurisdictions with cross-border transfer restrictions to a third country, such transfers shall be made in compliance with applicable data protection law, including through the use of appropriate transfer mechanisms such as standard contractual clauses, to the extent required by such law.

 

13. Return and Deletion. Upon termination or expiration of the Agreement, Vendor shall return or delete Personal Data as described in Section 14.7 of the Agreement, unless retention is required by applicable law.

 

14. Audit Rights. Customer’s rights to audit Vendor’s compliance with this DPA shall be as set forth in Section 18 of the Agreement.

  _____________________________________________________________________________________________________________________________________________________________________

Exhibit B

Service Level and Support Services Agreement

1. Service Availability. Vendor will use commercially reasonable efforts to provide the Services with a monthly uptime percentage of at least 99.9%, measured on a calendar-month basis, excluding Excluded Downtime.

 

2. Excluded Downtime. “Excluded Downtime” means:

 

1. Scheduled maintenance windows, for which Vendor will provide at least forty-eight (48) hours’ prior notice where practicable and will schedule outside of normal business hours where reasonably possible;

 

2. Emergency maintenance required to address security vulnerabilities or other critical issues;

 

3. Downtime caused by Customer’s or its third-party providers’ systems, networks, or equipment, or by Third-Party Services;

 

4. Downtime attributable to Force Majeure Events;

 

5. Misuse or breach of the Agreement by Customer or its Authorized Users.

 

3. Service Credits. If Vendor fails to meet the uptime commitment in Section 1 for a given calendar month, Customer may be entitled to service credits as follows:

 

1. Uptime of 99.0% to 99.89%: credit of 5% of the monthly subscription Fees for the affected Service;

 

2. Uptime of 98.0% to 98.99%: credit of 10% of the monthly subscription Fees for the affected Service;

 

3. Uptime below 98.0%: credit of 20% of the monthly subscription Fees for the affected Service. To receive a service credit, Customer must submit a written request to Vendor within thirty (30) days after the end of the month in which the downtime occurred, with reasonable supporting detail. Service credits will be applied to future invoices and shall constitute Customer’s sole remedy for failure to meet the uptime commitment, subject to Section 4 (Chronic Failure).

 

4. Chronic Failure. If Vendor fails to meet the uptime commitment in Section 1 for three (3) or more calendar months in any rolling twelve (12)-month period, Customer may terminate the affected Order Form upon thirty (30) days’ prior written notice, and Vendor shall refund any pre-paid, unused subscription Fees for the terminated portion of the Subscription Term.

 

5. Support Services. Vendor will provide standard support as follows:

 

1. Support Hours: Business Days, 9:00 a.m. to 5:00 p.m., Central Time, excluding Vendor’s published holidays;

 

2. Support Channels: email and/or web-based ticketing system, as designated by Vendor;

 

3. Incident Priorities and Response Targets:

 

1. Priority 1 (Critical): Complete loss of core Service functionality affecting all users, with no workaround available. Target initial response: within 2 hours during support hours;

 

2. Priority 2 (High): Significant degradation of Service functionality affecting many users, with limited workaround. Target initial response: within 4 hours during support hours;

 

3. Priority 3 (Medium): Moderate impact issue or defect with a reasonable workaround. Target initial response: within 1 Business Day;

 

4. Priority 4 (Low): Minor issues, cosmetic defects, or general questions. Target initial response: within 2 Business Days. Vendor will use commercially reasonable efforts to resolve incidents but does not guarantee resolution times.

 

6. Customer Responsibilities for Support. Customer shall:

 

1. Designate one or more technical contacts to interface with Vendor support;

 

2. Provide Vendor with reasonable access to relevant systems and information necessary to diagnose and resolve issues;

 

3. Use reasonable efforts to verify that reported issues are reproducible and to provide Vendor with sufficient detail to reproduce and diagnose the problem.

 

7. Updates and Maintenance. Vendor may perform maintenance and deploy Updates from time to time. Vendor will use commercially reasonable efforts to:

 

1. Schedule non-emergency maintenance during off-peak hours;

 

2. Provide reasonable notice of any maintenance expected to cause significant service disruption.

  Modifications. Vendor may update this Exhibit B from time to time, provided that the modifications do not materially reduce the overall level of Service availability or support commitments applicable to Customer during the then-current Subscription Term