Software as a Service (Saas) Agreement
For valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
"Authorized Users" shall mean Subscriber's employees and independent contractors working for Subscriber in the ordinary course of Subscriber's business who: (i) agree to be bound by the terms of this Agreement; and (ii) are specifically authorized by Subscriber to access the Service and identified on an applicable Subscription.
"Display Devices" shall mean the display device of an Authorized User used to access, display, and use the Service.
"Service" shall mean Licensor's RISPIRA™ online service, including associated documentation made available to Subscriber in written form or online, subscribed to by Subscriber hereunder, including as further described in an applicable Subscription.
"Service Start Date" shall mean the date from which Subscriber first receives the applicable Service or as identified on an applicable Subscription, whichever is earlier.
"Fees" shall mean the fees payable pursuant to Section 2 hereof and an applicable Subscription.
"Subscription" shall mean a written document executed by the Parties in the form attached hereto as Exhibit A that describes the Service, Term, Fees, the number of Authorized Users and/or Display Devices, and any other applicable terms and conditions applicable to Subscriber’s access and use of the Service. Each executed Subscription is hereby incorporated into this Agreement in its entirety by this reference. A Subscription will take precedence over any other provision of this Agreement, provided that any conflict or inconsistency in an Subscription with any other provision of this Agreement will only apply to that specific Subscription.
"Subscriber Data" means (i) any electronic data, customer data, information, or material that Subscriber provides, uploads, or submits to Licensor in connection with this Agreement, and (ii) any electronic data, customer data, information, or material generated from or in connection with Subscriber’s use of the Service (including any Authorized User and customers or clients of an Authorized User).
"Subscriber
Marks" shall mean the trademarks, service marks, copyrights,
intellectual property, symbols, logos, emblems, decals, designs, colors,
likenesses, or other visual representations of Subscriber, as such
or deleterious computer codes, files,
scripts, agents, or programs;
Interfere with or disrupt the integrity or
performance of the Service or the data contained therein;
Attempt to gain unauthorized access to the
Service, computer systems, or networks related to the Service; or
Harass or interfere with another subscriber
or end-user’s use and enjoyment of the Service.
Service Fees and Other Fees. In exchange for the Services to be provided and the licenses granted under this Agreement, commencing on the Service Start Date, Subscriber shall pay Licensor the Fees identified in the applicable Subscription, plus any other applicable fees, costs, and expenses contained in the Subscription and this Agreement. Unless otherwise set forth in the applicable Subscription, all Fees are payable in advance on an a monthly basis, and are based on the Services and the number of Authorized Users identified in the Subscription. Subscriber shall inform Licensor of any increases in the number of Authorized Users no later than seven (7) days after the date of such increase and the Subscription will be deemed amended accordingly.
Late Payments. If
Subscriber fails to pay the Fees by the due date specified on the invoice,
Licensor shall be entitled to interest from the day on which the Fees became
due. Both parties agree that the rate of interest on overdue invoices shall be
1.5% per month, or the maximum amount allowable by applicable law, whichever is
greater.
"Term" shall mean the period beginning on the Effective Date and ending on the date the last Subscription in effect terminates or expires, as applicable.
License to
Receive the Service.
Grant. Licensor hereby grants the Subscriber identified on the Subscription attached hereto a limited, non-exclusive and non-transferable license, without right of sublicense, during the Term to access, display, and use on Subscriber's Display Devices, the Service, and to permit Authorized Users to access and use the Service, subject to the terms and conditions of this Agreement. All rights in the Service not expressly granted hereunder are reserved to Licensor.
Scope. The license granted to Subscriber hereunder is solely for
Subscriber’s internal business purposes and is limited to the access, display,
and use of the Service by only an Authorized User. Each Authorized User may
access, display, and use the Service consistent with the terms and conditions
of this Agreement and Subcription. Subscriber shall have no right pursuant to
this Agreement to access, use, display, or distribute the Service, in whole or
in part, beyond the number of Authorized Users identified on the applicable Subscription.
Subscriber may add additional Authorized Users by either executing a new Subscription
or amending an existing Subscription. Subscriber is responsible for all
activities that occur under Subscriber’s and any Authorized User’s accounts.
Subscriber will: (a) have sole responsibility for the accuracy, quality,
integrity, legality, reliability, and appropriateness of all use of the Service
by Subscriber and any Authorized User; (b) use commercially reasonable efforts
to prevent unauthorized access to, or use of, the Service, and notify Licensor
promptly after becoming aware of any such unauthorized access or use; and (c)
comply with all applicable local, state, federal, and foreign laws and/or
regulations (including required or necessary notices and warnings which
Subscriber must provide or may provide) in relation to Subscriber’s use of the
Service (including use of Subscriber Data and presentation of information to
Subscriber customers or clients). Nothing in this Agreement shall obligate
Licensor to continue providing access to any Service beyond the date when
Licensor ceases providing such Service to subscribers generally.
Restrictions on Use.
Subscriber shall not edit, alter, abridge, or otherwise change in
any manner the content of the Service, including, without limitation, all
copyright and proprietary rights notices. Subscriber may not, and may not
permit others to (including any Authorized User):
Reverse engineer, decompile, decode, decrypt,
disassemble, or in any way derive source code from, the software or Service;
Modify, translate, adapt, alter, or create
derivative works from the Service;
Copy, distribute, publicly display, transmit,
sell, rent, lease, or otherwise exploit the Service;
Distribute, sublicense, rent, lease, loan [or grant
any third-party access to or use of] the Service to any third party;
Harvest, collect, gather, or assemble
information or data regarding other subscribers;
Transmit through or post on the Service
unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening,
vulgar, or obscene material or material harmful to minors;
Transmit material containing software viruses
or other harmful shall be executed by the
Parties.
Access.
Service.
Subscriber shall acquire, install, operate, and maintain at Subscriber’s
expense all communications lines, equipment, software, services, and related
technology necessary to receive, access, and use the Service. Except as
expressly stated herein or on an applicable Subscription, Subscriber is
prohibited from and will have no right to: (i) allow any third party (which may
include agents, contractors, affiliates, or other third-party representatives
acting on behalf of Company) to access and/or use the Service; (ii) allow
access to or use of the Service outside of the United States of America
(including any Authorized User).
Delivery and Acceptance. Licensor will make the
Service available to Subscriber as indicated on the Subscription. The Service
will be deemed accepted upon the Service Start Date. Any updates, bug fixes, or
upgrades ("Corrections")
to the Service will be deemed accepted by Subscriber on the day such
Corrections are first made available to Subscriber or accessed by Subscriber,
whichever is earlier.
Reports and Records. Subscriber shall maintain
accurate records containing the following information, copies of which Licensor
shall be entitled to receive upon seven (7) days prior written notice to
Subscriber, the total number of Authorized Users at each Office. Licensor may, upon prior written notice to
Subscriber, reasonably request Subscriber to maintain records containing
additional information related to the Service and Subscriber’s use thereof. In
addition, Licensor may implement and use, but is not required to, various
software and tools to monitor Subscriber’s use of the Service, as Licensor
deems reasonably necessary, in order to determine Subscriber’s compliance with
the terms of this Agreement.
Audits and
Inspections. For the purpose of verifying compliance with
this Agreement, Licensor (and Licensor's authorized representatives) shall have
the right, during normal business hours upon reasonable advance notice and
without material disruption to Subscriber's business, to audit and inspect from
time to time Subscriber's offices, books, and records relevant to the Service
and to observe the use made of the Service and the manner in which each
Authorized User accesses the Service. If such audit or inspection pursuant to this
Section indicate that Subscriber is not in compliance with this Agreement
(including any Subscription), such as more Authorized Users accessing the
Service than permitted and/or purchased by Subscriber under an applicable Subscription,
Subscriber shall pay Licensor the shortfall in Fees, retrospectively to the
date the noncompliance first occurred (such as the date the number of
Authorized Users first exceeded the permitted number as stated in the
applicable Subscription). If such underpayment exceeds three percent (3%) of
the Fees due during the relevant period, Subscriber shall reimburse Licensor
for Licensor's reasonable costs associated with such audit or inspection.
Copyright Protection; Use Restrictions; Subscriber License
Grant.
Subscriber agrees that the Service and all parts thereof, and its specifications, including without limitation the editorial coding and metadata contained therein, are the property of Licensor or Licensor's licensors. The works and databases included in the content of the Service are protected by applicable copyright laws. Other than as expressly set forth in this Agreement, no license or other rights in the pre-existing intellectual property rights to the Service are granted to Subscriber, and all such rights are hereby expressly reserved.
Subscriber agrees that only Authorized Users shall be permitted access to the Service as set forth in a Subscription executed by the Parties. Except as set forth herein or in an Subscription, no clients or other persons or entities who are not legal employees of Subscriber or independent contractors consulting for Subscriber in the ordinary course of Subscriber's business may be Authorized Users.
Subscriber hereby grants Licensor a non-exclusive, non-transferable, and royalty-free license to use Subscriber Marks for the limited purposes set forth in this Agreement, including as necessary for Licensor’s performance under this Agreement, to deliver the Service in accordance with this Agreement, and in marketing materials related to the Service.
Licensor will have the right to use, act upon, and freely exploit any suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Subscriber, an Authorized User, or any other third party acting on Subscriber’s behalf, without any remuneration, fee, royalty, or expense of any kind, and Licensor will hereby own all rights, title, and interest in any such suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Subscriber, an Authorized User, or any other third party acting on Subscriber’s behalf.
Subscriber Data.
Subscriber is solely responsible for compliance with all federal, state and local requirements relating to the retention of records/data that may apply to Subscriber Data. Licensor shall only retain Subscriber Data for a period of ninety (90) days from the termination or expiration of the last Subscription related to this Agreement, after which all Subscriber Data shall be deleted.
Subscriber hereby grants to Licensor a non-exclusive, royalty-free, and non-transferable license to use, copy, store, modify, and display the Subscriber Data as necessary to provide the Service in accordance with this Agreement. Subscriber Data submitted by Subscriber to the Service, whether posted by Subscriber or by an Authorized User, remains the sole property of Subscriber and Subscriber reserves all right, title, and interest in the Subscriber Data. Notwithstanding any other provision in this Agreement, Licensor may collect and provide certain Authorized User registration and statistical information, such as usage or Authorized User traffic patterns, in aggregate and anonymized form to third parties, provided that such information does not identify any Authorized User or Subscriber and contains no personally identifying information. Licensor may access Subscriber’s and its Authorized User accounts, including, without limitation, Subscriber Data, to the extent necessary to respond to service or technical problems.
Warranties;
Disclaimer. Each Party warrants and represents that it
has the authority to execute, deliver, and perform its obligations under this
Agreement, having obtained all required Board of Directors' or other consents,
and is duly organized or formed, and validly existing and in good standing
under the laws of the state of its incorporation or formation. EXCEPT AS
SPECIFICALLY PROVIDED HEREIN, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE
SERVICE(S), THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE
PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS, AND LICENSOR
DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS,
ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR
NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
Subscriber Indemnity. Subscriber, at its expense, will defend, indemnify, and hold Licensor harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys' fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Licensor which relate to a claim, action, lawsuit, or proceeding made or brought against Licensor by a third party: 1) relating to or arising from a breach of any provision of this Agreement by Subscriber, including the provisions of Sections 3(b) and 3(c); arising from Subscriber’s use of the Service (including Subscriber Data); and/or 3) alleging the infringement or violation of such third party's registered patent, trade secret, copyright, or trademark (each a "Licensor Claim") by way of Licensor's use of any Subscriber Data, Subscriber Marks, or other information or materials provided by Subscriber in connection with this Agreement.
Licensor
Infringement Indemnity. Licensor, at its expense, will defend,
indemnify, and hold Subscriber harmless from and against any and all
third-party claims for damages (whether ordinary, direct, indirect, incidental,
special, consequential, or exemplary), judgments, liabilities, fines,
penalties, losses, claims, costs, and expenses including, without limitation,
reasonable attorneys' fees, finally awarded by a court of competent
jurisdiction, after all rights of appeal are exhausted, against Subscriber to
the extent such directly relates to a claim, action, lawsuit, or proceeding
made or brought against Subscriber by a third party alleging the infringement
or violation of such third party's registered patent, trade secret, copyright,
or trademark (each a "Subscriber Claim") by way of Subscriber's use
of the Service that Licensor provides to Subscriber under this Agreement.
For
purposes herein, each Party, when providing indemnification, will be termed an
"Indemnifying Party" and each Party, when receiving the benefits of
indemnification, shall be termed an "Indemnified Party." The term
"Indemnified Party" will include the other Party's respective
shareholders, officers, directors, administrators, managers, employees,
servants and agents, and successors and assigns. The Indemnifying Party's
obligations under this Section will be subject to the Indemnified Party
providing the Indemnifying Party prompt notice of the event giving rise to an
indemnity obligation, providing reasonable cooperation and assistance in the
defense or settlement of any claim (at the Indemnifying Party's sole cost and
expense), and granting the Indemnifying Party control over the defense and
settlement of the same. The Indemnifying Party will have the right to consent
to any settlement or judgment that is binding upon the Indemnifying Party.
In
the event a court of competent jurisdiction makes a determination that the
Service infringes on or otherwise violates any third-party registered patent,
trade secret, copyright, or trademark, or if Licensor determines that the
Service likely infringes or otherwise violates such third party's foregoing
intellectual property rights, Licensor, at its sole option and expense, will:
(a) modify the allegedly infringing or violating portion of the Service so as
to make it non-infringing and non-violating; (b) replace the allegedly
infringing or violating Service, or any portion thereof, with a non-infringing
and/or non-violating product having reasonably equivalent functionality; (c)
obtain the right for Subscriber to continue using the allegedly infringing or
violating portion of the Service; or (d) revoke the license to the allegedly
infringing or violating Service and provide a prorata refund to Subscriber for
all fees prepaid for the Service and not yet earned by Licensor.
Licensor
will have no obligation under this Agreement relating to any indemnification if
a Subscriber Claim results from any of the following: (i) Subscriber’s
continued use of the infringing or violating Service after Licensor first makes
an applicable Correction available to Subscriber; (ii) Subscriber’s
modification of the Service (including a third party acting on its behalf); or
(iii) Subscriber’s use of the Service in any manner other than as permitted
under this Agreement.
Limitation of
Liability. LICENSOR AND ITS SUBSIDIARIES, AFFILIATES,
SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AND LICENSORS ("LICENSOR
PARTIES") WILL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO SUBSCRIBER,
AUTHORIZED USERS, OR ANY THIRD PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL,
INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST
PROFITS, LOST SAVINGS, AND LOST REVENUES (COLLECTIVELY, THE "EXCLUDED
DAMAGES"), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT,
OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF LICENSOR PARTIES HAVE BEEN ADVISED
OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND
IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO
EVENT WILL THE LIABILITY OF LICENSOR PARTIES ARISING OUT OF ANY CLAIM RELATED
TO THIS AGREEMENT, EXCEPT FOR LICENSOR’S INDEMNIFICATION FOR INTELLECTUAL
PROPERTY INFRINGEMENT PURSUANT TO SECTION 10, EXCEED THE AGGREGATE AMOUNT PAID BY
SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT
GIVING RISE TO SUCH CLAIM. FOR ANY LICENSOR INDEMNIFICATION FOR INTELLECTUAL
PROPERTY INFRINGEMENT PURSUANT TO SECTION 10, IN NO EVENT WILL THE LIABILITY OF LICENSOR
PARTIES ARISING OUT OF ANY SUCH CLAIM EXCEED THREE TIMES THE AGGREGATE AMOUNT
PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING
THE EVENT GIVING RISE TO SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS ANY
PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN LICENSOR PARTIES' LIABILITY
WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
Term; Termination. This Agreement shall be effective for the Term, unless terminated
earlier in accordance herewith. Modifications in any ongoing Fees in connection
with the Service shall be communicated to Subscriber no later than thirty (30)
days prior to their effective date, and such modified Fees shall be deemed to
replace those previously stated in the Subscription. This Agreement, including
all Subscriptions, may be terminated as follows: (a) immediately by Licensor
for Subscriber’s failure to timely pay any Fees required by the Subscription or
for other material breach of this Agreement or a Subscription; (b) by either
party upon providing at least sixty (60) days written notice; or (c) if a
receiver is appointed over any assets of either Party or if either Party makes
any arrangement with its creditors or becomes subject to an administration
order or goes into liquidation or anything equivalent to the foregoing under
any jurisdiction or ceases to carry on business, the other may terminate by
giving written notice with immediate effect. If this Agreement is terminated
before the end of its then-current term (as identified on the applicable Subscription)
for any reason other than by Subscriber under the foregoing clauses (a) or (c)
in this Section, then Subscriber will pay to Licensor as liquidated damages,
with respect to an Subscription, the amount due by Subscriber for the previous
calendar month times the number of months remaining in such Term (as identified
on the applicable Subscription) ("Liquidated Damages") within
30 days after such termination. The parties agree that the Liquidated Damages
under this clause are not intended to be and will not be punitive in effect and
that the Liquidated Damages are a genuine pre-estimate of loss (which may be
difficult to ascertain) resulting from early termination of this Agreement.
Notwithstanding anything to the contrary contained in this Agreement, if
Subscriber receives any notice of late payment under this Agreement in any
form, written or electronic, from Licensor including any business division (e.g.,
Licensor' Credit Department), such notice will be deemed to be a Notice of
Breach.
Confidentiality. Subscriber and Licensor understand and agree that in the
performance of this Agreement each Party may have access to private or
Confidential Information of the other Party, which either is marked as
"confidential" or the receiving party should reasonably know under
the circumstances that such information is confidential and/or proprietary
information of the other Party. Each Party shall hold such Confidential
Information in confidence and not, without the consent of the other, disclose
it to a third party or use it for any purpose other than in performance of this
Agreement. The disclosure of the Confidential Information to the receiving
Party does not confer upon the receiving Party any license, interest, or right
of any kind in or to the Confidential Information, except as provided under
this Agreement. At all times and notwithstanding any termination or expiration
of this Agreement, the receiving Party agrees that it will hold in strict
confidence and not disclose to any third party the Confidential Information of
the disclosing Party, except as approved in writing by the disclosing Party.
The receiving Party will only permit access to the Confidential Information of
the disclosing Party to those of its employees or authorized representatives
having a need to know and who have signed confidentiality agreements or are
otherwise bound by confidentiality obligations substantially similar to those
contained in this Agreement. The receiving Party will be responsible to the
disclosing Party for any third party's use and disclosure of the Confidential
Information that the receiving Party provides to such third party in accordance
with this Agreement. The receiving Party will use at least the same degree of
care it would use to protect its own Confidential Information of like
importance, but in any case with no less than a reasonable degree of care,
including maintaining information security standards for such Confidential
Information as are commercially reasonable and customary for the type of
Confidential Information. This obligation of confidentiality shall not apply to
information that is: (i) generally available to the public through no act or
omission of the receiving Party, (ii) becomes known to the receiving Party
through a third party with no obligation of confidentiality, (iii) was in the
receiving Party's possession before receipt from the disclosing Party, (iv) is
independently developed by the receiving Party, or (v) is required to be
disclosed by law, court, or by any government or regulatory authority. If any
Confidential Information is required to be disclosed by statute, rule,
regulation, or order of any court of competent jurisdiction, before any such
disclosure the receiving Party will provide notice to the disclosing Party
reasonably sufficient to allow the disclosing Party the opportunity to apply
for a protective order or other restriction regarding such disclosure. If
either Party elects to file this Agreement with the U.S. Securities and
Exchange Commission or any other securities exchange or market, regulatory
authority or other body, the filing Party will provide the non-filing Party
with no less than five (5) business days notice before the expected date of the
filing (the "Filing Date"), and a copy of the Agreement marked
to show the sections for which the filing Party plans to seek confidential
treatment. The filing Party agrees to expand its confidential treatment request
to include those provisions of this Agreement reasonably indicated by the
non-filing Party before the Filing Date as provisions for which the non-filing
Party requests confidential treatment. All Confidential Information will remain
the exclusive property of the disclosing Party. No public announcement, press
release, or communication concerning this Agreement shall be made without the
prior consent of the other Party. Each Party to this Agreement will immediately
notify the other Party in writing upon discovery of any unauthorized loss,
access, or disclosure of the Confidential Information of the other Party. Upon
termination or expiration of this Agreement, upon written request of the other
Party, or when no longer needed by either Party for fulfillment of its
obligations under this Agreement, each Party will either: (a) promptly return
to the other Party all documents and other tangible materials representing the
other Party's Confidential Information, and all copies thereof in its
possession or control; or (b) destroy all tangible copies of the other Party’s
Confidential Information in its possession or control by the following methods.
Notwithstanding the foregoing, each Party’s legal counsel may retain one copy
of the disclosing Party’s Confidential Information for its files solely to
provide a record of such Confidential Information for archival purposes. If
either Party should breach or threaten to breach any provision of this Section
of the Agreement, the non-breaching Party, in addition to any other remedy it
may have at law or in equity, will be entitled to seek a restraining order,
injunction, or other similar remedy in order to specifically enforce the
provisions of this Agreement. Each Party specifically acknowledges that money
damages alone would be an inadequate remedy for the injuries and damages that
would be suffered and incurred by the non-breaching Party as a result of a
breach of any provision of this Section. In the event that either Party should
seek an injunction hereunder, the other Party hereby waives any requirement for
the submission of proof of the economic value of any Confidential Information
or the posting of a bond or any other security. In the event of a dispute
between the Parties, the non-prevailing Party will pay all costs and expenses,
including, but not limited to, reasonable attorneys' fees, associated with
resolving the dispute. For purposes of this Agreement, “Confidential
Information” means any valuable, non-public business information, including
this Agreement and all matters discussed relating to this Agreement, [and any
personally identifiable health, medical, employment, and similar private
personal information], that is designated or identified as confidential at the
time of the disclosure or is by its nature clearly recognizable as confidential
information to a reasonably prudent person with knowledge of the disclosing
Party’s business and industry.
Miscellaneous.
Notice. All notices to a Party hereunder shall be in writing, and delivered by certified mail, return receipt requested, overnight courier service, or by facsimile with confirmation by the above described mailing methods to the address(es) set forth in this Agreement, or to a different address which a Party may give written notice of pursuant to this Section from time to time. Notice will be deemed delivered and received on the date it is actually received or as stated in written evidence of receipt from the applicable mail courier.
Amendment. This Agreement may not be amended except in a writing executed by
authorized representatives of Subscriber and Licensor.
Assignment. This Agreement is not transferable, assignable, delegable, or
sublicenseable by Subscriber in whole or in part, without the prior written
permission of Licensor. This Agreement will be binding upon and inure to the
benefit of the Parties and their respective permitted successors, trustees,
administrators, and assigns.
Survival. Any and all provisions, promises, and warranties contained
herein, which by their nature or effect are required or intended to be
observed, kept, or performed after termination or expiration of this Agreement,
will survive the termination or expiration of this Agreement and remain binding
upon and for the benefit of the Parties hereto.
Independent
Contractor. Licensor is acting in performance of this
Agreement as an independent contractor.
Binding Effect and
Third-Party Beneficiary. Except if specifically stated in this
Agreement, neither Party, nor any of their respective employees or agents, will
have the power or authority to bind or obligate the other Party. No third party
is a beneficiary of this Agreement.
Waiver of Rights. Except where specifically
stated to the contrary, all remedies available to either Party for breach of
this Agreement under this Agreement, at law, or in equity, are cumulative and
non-exclusive. A waiver or failure of either Party at any time to require
performance by the other Party of any provision hereof will not affect the full
right to require such performance at any time thereafter.
Injunctive Relief. If Subscriber breaches Section 2 of this Agreement, Licensor will be entitled, in addition to any
other rights available under this Agreement, or at law or in equity, to apply
for immediate injunctive relief without any requirement to post a bond or other
security and Subscriber acknowledges and agrees to not contest such application.
Severability. If any provision or portion thereof of this Agreement or its
application in a particular circumstance is held to be invalid or unenforceable
to any extent in any jurisdiction, such provision or portion thereof will, as
to such jurisdiction only, be ineffective to the extent of such
unenforceability, all other provisions and portions thereof of this Agreement
will not be affected thereby and will be valid and enforced to the fullest
extent permitted by law.
Choice of Law and
Venue. This Agreement, as well as any and all tort claims arising from
this Agreement or arising from any of the proposals, negotiations,
communications, or understandings regarding this Agreement, will be governed by
and construed in accordance with the laws of the State of Nevada, United States
of America ("Nevada"), applicable to contracts made entirely within
Nevada and wholly performed in Nevada, without regard to any conflict or choice
of law principles. The sole jurisdiction and venue for any litigation arising
out of this Agreement will be an appropriate federal or state court located in Clark
County, Nevada. Further, neither the United Nations Convention on Contractors
for the International Sale of Goods nor the Uniform Computer Information
Transactions Act will apply to this Agreement.
Force Majeure. Any failure or delay by Licensor in the performance of its
obligations pursuant to this Agreement will not be deemed a default or breach
of the Agreement or a ground for termination to the extent such failure or
delay is due to computer or Internet or telecommunications breakdowns, denial
of service attacks, fire, flood, earthquake, elements of nature or acts of God,
acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the
United States, or any nation where the obligations under this Agreement are to
be executed, strikes, supplier and third-party failure, lockouts, labor difficulties, quarantines, health
related orders, or other similar actions taken by governmental authorities, or
any similar cause beyond the reasonable control of Licensor.
Entire Agreement. This Agreement contains the final and entire agreement of the
parties and supersedes all previous and contemporaneous verbal or written
negotiations, understandings, or agreements regarding the Agreement's subject
matter.
Counterparts. This Agreement may be executed in one or
more counterparts, each of which will for all purposes be deemed an original
and all of which will constitute the same instrument.
Headings. Headings of particular sections are inserted
only for convenience and are not to be considered a part of this Agreement or
be used to define, limit, or construe the scope of any term or provision of
this Agreement. Should any provision of this Agreement require judicial
interpretation, the Parties agree that the court interpreting or construing the
same will not apply a presumption that the terms of this Agreement will be more
strictly construed against one Party than against the other.
Export Laws
Compliance. Neither Party will
export, directly or indirectly, any technical data acquired from the other
Party pursuant to this Agreement (or any product utilizing such data) to any
country for which the United States Government, any agency thereof, or any
applicable foreign governmental body at the time of export requires an export
license or other governmental approval without first obtaining such license or
approval. Each Party will comply with all applicable export and import laws and
regulations.
Legal Counsel. Each Party acknowledges that it has had the
right to seek independent legal counsel with respect to this Agreement, and
that each Party has substantially participated in the drafting and negotiation
of this Agreement. No provision hereof will be construed against one Party by
virtue of the fact that such provision was drafted by such Party.
Exhibits. The
following Exhibits are attached hereto and incorporated herein by this
reference: Exhibit A: Subscription.
Exhibit A: SUBSCRIPTION
THIS SUBSCRIPTION IS BEING EXECUTED PURSUANT TO THAT CERTAIN SAAS AGREEMENT BY AND BETWEEN RISPIRA LLC (“LICENSOR") AND _______________________ ("SUBSCRIBER") DATED AS OF ____________________ (THE "AGREEMENT").
Service
Start Date: ____________________
SERVICES
Subject to the terms and conditions of the Agreement, Licensor will provide to Subscriber the following Services on the further terms and conditions set forth below:
Service Description: Online access to the RISPIRA™ retirement planning and client tracking platform and associated data storage of Subscriber’s client information which input into the platform. To the extent a RISPIRA™ downloadable mobile application is provided (and during the Term and consistent with the Agreement and this Subscription), each Authorized User is provided a limited, non-exclusive license to download, install and utilize that mobile application to access the Service.
Term: The term of Service under this Subscription will commence as of the Service Start Date and will continue for one (1) year ("Initial Term"). After the Initial Term, this Subscription shall automatically renew for successive 1-month periods (each, a “Renewal Term”) unless either Party provides written notice of non-renewal to the other Party at least sixty (60) days prior to the expiration of the then-current term. The Initial Term together with any and all Renewal Terms, shall be referred to herein as the “Order Term.”
Fees:
Year 1:
Subsequent Months (Renewal Terms):
Maximum
Number of Authorized Users:
(**), where each Authorized User shall be required to register a unique user name and password to utilize the Service.
Access: Access to the Service may be made by an Authorized User via any Display Device that the Authorized User chooses (e.g. mobile device, laptop computer, desktop computer, etc.), and a single Authorized User may access the Service via multiple Display Devices at one time.
Additional
Terms and Conditions:
(a) Licensor will provide the Service to Subscriber pursuant to the Uptime set forth herein, excluding any scheduled maintenance time. Scheduled maintenance time will not exceed [ten (10) hours] a month, and will take place during Non-Peak Hours. "Non-Peak Hours" will be the hours between [12:00 AM and 5:00 AM EST].
(b) Deductions from Monthly Fees as a result of Service Level Non-Performance. If Licensor has failed to meet any of the Service Levels set forth herein, Subscriber will be entitled to receive deductions from its monthly fee as set forth below in the form of a credit. Deductions are expressed as a percentage of Licensor's total monthly charges during the month in which the service deduction applies, with each section being applied separately against the total monthly charges and then the totals of each chart aggregated.
(c) Uptime. Licensor will provide Service availability at an Uptime of [99.9%] or better. "Uptime" will mean each of the database, application, and web servers supporting the Service are operational and are capable of transmitting data. Uptime will be calculated as follows: (Total Hours Available – Actual Outage Hours) divided by Total Hours Available. “Total Hours Available” means the total hours during the month less any hours designated for scheduled maintenance downtime (up to the maximum permitted herein). “Actual Outage Hours” means the total number of hours elapsed, beginning with when Licensor first notifies Subscriber of an Outage, and ends with the time that the Outage has been resolved. “Outage” means Subscriber’s inability to gain access to the Service to perform online transactions. Licensor will provide to Subscriber a [monthly] report, within 10 calendar days of the end of the prior month, illustrating Licensor’s performance against the service levels set forth in this Attachment. If Licensor's noncompliance is between [99% to 99.9%], Subscriber will be credited five percent (5%) of its monthly fee. If noncompliance is from 95% to 99%, the credit will be ten percent (10%) of the monthly fee. There will be an additional two percent (2%) credit of the monthly fee for each additional one percent (1%) of noncompliance beyond 95%, up to a maximum credit equal to 20% of the then-applicable monthly fee.