SOFTWARE AS A SERVICE AGREEMENT
Latest updated: December 17th, 2018
These Terms and Conditions (the “Terms”) govern your subscription (“Licensee Subscription”) for our services (“Vendor Services”) using our software (“Vendor Software”) for the management of your documents, records and data (collectively, “Licensee Content”). In addition to these Terms, each Licensee Subscription is governed by a quotation sheet (“Quotation Sheet”) specifying the Vendor Services included in each Licensee Subscription and any software licensed thereunder (“Licensed Software”), the term of the Licensee Subscription (“Service Term”), the term of the License to use the Vendor Software (“License Term”) and the fees applicable to the Licensee Subscription for Services (“Service Fees”) and fees for the License (“License Fees”) for the Licensed Software.
These Terms also govern any use of the Vendor Services by any person who is granted access to the Vendor Services by you, on your behalf or at your request (each a “User”) so long as you have notified us in advance, and you agree to be responsible for any use of the Vendor Services by any of your Users. By using the Vendor Services or permitting any User to use the Vendor Services, you agree to these Terms. If you do not agree to all of the Terms, you do not have the right to access, or permit any User to access, the Vendor Services or the Vendor Software.
1. Use of Vendor’s Services
a) Subject to the terms and conditions of this Agreement and any Quotation Sheet entered into by and between the parties, Vendor grants Licensee and Licensee’s designated users (“Users”) the nonexclusive right to the Vendor Services, or Licensed Software, during the Service Term or License Term.
b) Neither Licensee nor any User will (i) modify, translate, or create derivative works of the Vendor Services, Vendor Software or Vendor Site (collectively, “Vendor Technology”); (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Vendor Software’s source code or any other technology used by Vendor to provide the Vendor Service; (iii) sublicense, resell or distribute any Vendor Technology in any manner or form; or (iv) “frame” or “mirror” the Vendor Services or Vendor Site.
c) Licensee is responsible for maintaining the security and confidentiality of all activities that occur while using Vendor’s Services or Vendor’s Software. Licensee agrees to notify Vendor immediately of any unauthorized use or other known or suspected breach of security.
d) Licensee will have sole responsibility, and Vendor assumes no responsibility, for the Licensee’s use of Vendor’s Services or Vendor’s Software. Without limiting the foregoing, Licensee will not submit, or permit any of its Users to submit, to the Vendor in the course of providing Vendor’s Services any Licensee Content or other materials (collectively “Restricted Materials”) that are
Illegal or illegally created or obtained;
Indecent or obscene;
Infringing of any third party rights;
Invasive of personal privacy;
Subject to mandatory public disclosure by Vendor except in accordance with Licensee’s written instructions to Vendor;
Protected by the Health Insurance Portability Accountability Act (HIPAA) of the United States of America;
Restricted Data, as that term is defined in Title 28, Part 20, Code of Federal Regulations of the United States of America; or
Personally Identifiable Information (PII) as defined in applicable laws or regulations.
e) Licensee shall comply with all applicable laws in using the Vendor Services and Vendor Software.
f) Licensee is granted a non-perpetual, nonexclusive, nontransferable license during the Term, limited for: (a) Licensee to use the Software in processing data for Licensee’s internal business use by not more than the number of concurrent users having access to the Software and (b) Licensee to use the Software in processing a client’s data as part of a service provided to a client where such processing is undertaken by Licensee as an integral part of its business operations and is not undertaken by such client or any employee or agent of such client or any third party , and further such processing is not provided as a standalone service (i.e., a service where data processing is the only outcome of the use of the Software) by Licensee (the “License”).
g) Vendor may, from time to time, adopt and update rules for permitted and appropriate use of the Vendor Services and Vendor Software. Upon delivery to Licensee, or publication on the Vendor Site, of any such rules or updates, any further use of the Vendor Services by Licensee and Licensee’s Users shall be subject to such rules.
h) Vendor reserves the right, in addition to any other remedies available to it, to suspend any User account or User activity if Vendor believes such account or activity (i) is the source of disruption of the Vendor Services or harm to the systems or infrastructure of Vendor or any third party, (ii) is being used to conduct illegal activity or activity that could potentially expose Vendor to legal liability, or (iii) has been used to submit Restricted Materials to the Vendor Services, or (iv) otherwise violates the terms and conditions set forth in this Agreement or any rules adopted by Vendor with respect to the use of the Vendor Services.
i) The Vendor Services are subject to modification from time to time at Vendor’s sole discretion; provided that any such modification will not degrade the functionality of the Vendor Services or Vendor Software in any material manner, except as required by applicable law. Vendor will use reasonable efforts to give Licensee prior written notice of any material modification.
Service Fees and License Fees for all services and licenses shall be payable in the amounts and upon the terms specified in one or more Quotation Sheet entered into by and between Vendor and Licensee which is incorporated herein by reference. Vendor reserves the right to adjust License Fees upon the expiration of any License Term, with any such adjustment to be reflected in the specific Quotation Sheet issued by Vendor to Licensee with respect to the following License Term. Except as expressly provided in this Agreement, Service Fees and License Fees are nonrefundable. Late payments shall be subject to a charge of 1.5% per month on any outstanding balance or the maximum permitted by law, whichever is lower, plus all reasonable expenses and fees of collection.
3. Licensee Content
a) Vendor does not accept Licensee Content, nor does it store, host or retain Licensee Content. As between Licensee and Vendor, in the event Licensee Content is submitted to the Vendor by Licensee or by Licensee’s Users in the course of Vendor providing Services, such content will remain the sole property of Licensee or such Users.
b) Except as authorized by Licensee (in this Agreement or otherwise) or required under applicable law, Vendor shall not copy, retain or disclose any Licensee Content to anyone other than Vendor’s employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform Vendor’s obligations hereunder. The confidentiality obligations set forth in this paragraph (i) will survive for one (1) year after the termination or expiration of this Agreement, and (ii) do not apply to Licensee Content which is (A) already in the possession of Vendor and not subject to a confidentiality obligation to Licensee; (B) independently developed by Vendor; (C) publicly disclosed through no fault of Vendor; or (D) rightfully received by Vendor from a third party that is not under any obligation to keep such information confidential.
4. Ownership of Vendor Technology
Vendor retains all rights in the Vendor Technology, including, without limitation, any intellectual property developed by Vendor during the course of its performance of any services for Licensee. Except as expressly provided in this Agreement, no license or other right is granted to Licensee or its Users in the Vendor Technology. The Vendor name, the Vendor logo, and the product names associated with the Vendor Technology are trademarks of Vendor or third parties, and they may not be used without Vendor’s prior written consent. Notwithstanding the foregoing to the contrary, to the extent that in the course of providing Vendor Services Vendor creates routines or scripts which are used by Licensees to perform functions on Vendor’s Software, then in such event Vendor grants to Licensee a non-exclusive license to use such routines or scripts for Licensee’s internal business purposes running on Vendor’s Software.
a) Vendor will defend, indemnify, and hold Licensee (and its Users, officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred in connection with any third party claim, suit, action, or proceeding arising from the actual or alleged infringement of any United States copyright, patent, trademark, or misappropriation of a trade secret by the Vendor Software. In case of such a claim, Vendor may, in its sole discretion and at its sole cost, procure a license that will protect Licensee against such claim, replace the Vendor Software with a comparable non-infringing software, or terminate the Licensee License without fault, provided that in case of such a termination, Licensee will receive a pro-rata refund of the applicable Fees. The obligations contained in this paragraph will not apply to the extent that the alleged infringement would not exist without: (i) modification of any Vendor Technology by Licensee or any User, (ii) combination by Licensee or any User of any Vendor Technology with any third party technology, (iii) continued use of any Vendor Technology by Licensee or any User more than thirty (30) days after Licensee is notified of the alleged infringement or modifications that would have avoided the alleged infringement, or (iv) used by Licensee or any User of any Vendor Technology in breach of this Agreement.
b) Licensee will defend, indemnify, and hold Vendor and its licensors of the Vendor Technology (and their officers, directors, employees and agents) harmless from and against all Losses incurred in connection with Licensee’s breach of Section 1 (Use of Vendor Services).
c) In case of any claim that is subject to indemnification under this Agreement, the party that is indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.
d) For removal of all doubt, Foxtrot Alliance Ltd. ApS and EnableSoft, Inc. shall each be a benefitted third party coupled with an interest to this Agreement supported by separate and adequate consideration and shall have the right to enforce the terms of this Agreement to protect their rights and interests to the extent affected hereby.
6. Disclaimers and Limitations
a) THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY VENDOR. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. THE VENDOR TECHNOLOGY IS PROVIDED TO LICENSEE ON AN “AS IS” AND “AS AVAILABLE” BASIS. LICENSEE IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE VENDOR SERVICES OR VENDOR SOFTWARE ARE SUITABLE FOR LICENSEE’S PURPOSES. VENDOR DOES NOT WARRANT THAT USE OF THE VENDOR TECHNOLOGY WILL BE ERROR-FREE OR UNINTERRUPTED. VENDOR MAKES NO WARRANTY THAT THE VENDOR TECHNOLOGY COMPLIES WITH THE LAWS OF ANY JURISDICTION OUTSIDE THE UNITED STATES.
b) Except with regard to liability for the indemnity obligations under Section 5 (Indemnification) or Licensee’s breach of Section 1 (Use of Services), in no event will either party’s aggregate liability exceed the Services Fees or License Fees, or both, required to be paid by the Licensee to Vendor during the twelve (12) month period ending on the date on which the relevant claim is submitted. In no event will either party be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, loss of data, revenue, profits, use or other economic advantage other than pursuant to mandatory law).
7. Term and Termination
a) The Term of this Agreement shall begin on the Effective Date and end on the first anniversary of the Effective Date or, if later, after the License Terms for all Licensee Licenses have expired.
b) The Term of each Vendor Service or Licensee License shall be as set forth in the Quotation Sheet for such. A Quotation Sheet issued by Vendor to Licensee shall be deemed to be effective if Licensee (i) executes and returns it to Vendor or (ii) remits payment to Vendor of the Service Fees or License Fees specified in it.
c) Either party may terminate this Agreement and any Quotation Sheet at any time in the event that the other party (i) breaches any material term of this Agreement or such Quotation Sheet and fails to cure such breach within thirty (30) days after written notice thereof; or (ii) becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law, or is wound up or liquidated, voluntarily or otherwise.
d) Upon termination of this Agreement for any reason, Licensee and Users shall cease all use of Vendor Services and Vendor’s Software and, except as provided in Section 8 (Survival of Provisions), all rights and obligations of the parties hereunder, apart from Licensee’s accrued financial obligations, shall automatically cease. Notwithstanding the foregoing, termination shall not affect or prejudice any right or remedy that a party possesses with respect to any breach of this Agreement occurring on or before the date of termination. Vendor retains the right to utilize the features contained in the Vendor Software to terminate use of the Vendor Software by Licensee if this Agreement is terminated by reason of Licensee’s breach.
8. Survival of Provisions
The following Sections, and all defined terms used therein, shall survive termination: all definitions, 1(b)-(e) (Use of Vendor’s Services), 3 (Licensee Content), 4 (Ownership of Vendor Technology), 5 (Indemnification), 6 (Disclaimers and Limitations), 7 (Term and Termination), 8 (Survival of Provisions), 9 (Notice), and 10 (Miscellaneous).
Vendor may give notice by means of electronic mail to Licensee’s email address on record in Licensee’s account or by written communication sent by first class mail or by courier service to Licensee’s address on record in Licensee’s account. Such notice will be deemed to have been given upon the expiration of 72 hours after mailing (if sent by first class mail) or sending by courier or 24 hours after sending (if sent by email), or, if earlier, when actually received. Licensee may give notice to Vendor by email to firstname.lastname@example.org. A party may, by giving notice, change its applicable address, email, or other contact information.
a) Choice of Law. This Agreement will be interpreted in accordance with the laws of the State of Florida and applicable federal law, without regard to conflict of laws principles.
b) Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the invalid, illegal, or unenforceable provision will not affect any other provisions, and this Agreement will be construed as if the invalid, illegal, or unenforceable provision is severed and deleted from this Agreement.
c) No Agency. No joint venture, partnership, employment, or agency relationship exists between Licensee and Vendor as a result of this Agreement or use of any Vendor Services.
d) No Waiver. The failure of a party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision.
e) Force Majeure. If the performance of this Agreement by either party (other than the payment of Service Fees or License Fees by Licensee) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such party, that party will be excused from such performance to the extent that it is prevented, hindered or delayed by such causes.
f) Authority. Each of the undersigned represents and warrants that he or she has full legal authority to bind the party for which he or she purports to execute this Agreement by signing below.
g) Assignment. This Agreement may not be assigned by Licensee without the prior written approval of Vendor but may be assigned by Vendor to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Vendor’s assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This Agreement may be enforced by and is binding on permitted successors and assigns.
h) Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
i) Entire Agreement. This Agreement and any Quotation Sheets in effect between the parties comprise, together, the entire agreement between Licensee and Vendor and supersede all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No amendment or modification to this Agreement shall be binding unless in writing and signed by an authorized representative of each party. This Agreement, together with any Quotation Sheet entered in to by and between Vendor and Licensee incorporated in this Agreement, supersedes any other agreement whether oral or in writing.