SOFTWARE AS A SERVICE AGREEMENT
This Software as a Service Agreement (“SaaS Agreement”) is made and entered into as of the date of signature of Customer, below. Customer’s access to the Services is expressly conditioned upon acceptance of the terms and conditions of this SaaS Agreement and Drip7 Inc. will not accept any different or additional terms and conditions, whether contained in Customer’s request for proposal, request for quotation, purchase order, or otherwise.
1.1. PURPOSE. This Software as a Service Agreement (“SaaS Agreement”) sets forth the terms and conditions
under which Drip7 Inc. agrees to provide (i) certain hosted “software as a service” (the “SaaS”) and (ii) technical support and maintenance (“Support Services” together with the SaaS, the “Services”) related to Customer’s access to, and use of, such SaaS, as specifically provided on Exhibit 1.
1.2. THE SERVICES. Subject to the terms and conditions of this SaaS Agreement, during the Term, Drip7 Inc.will use commercially reasonable efforts to provide Customer and Authorized Users access to the Services.
1.3. USE. Subject to the terms and conditions of this SaaS Agreement, during the Term, Drip7 Inc. hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, non- transferable, restricted worldwide license to access and use the SaaS, solely for internal business purposes as set forth herein.
1.4. SUPPORT SERVICES. The Support Services are set forth in the Service Level Agreement, attached hereto as Exhibit 2.
1.5. CHANGES TO PLATFORM. Drip7 Inc. may, in its sole discretion, make any changes to any SaaS that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Drip7 Inc.’s products or services to its customers, (b) the competitive strength of, or market for, Drip7 Inc.’s products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law. Such changes to the SaaS will not change the rights or obligations of the parties under this SaaS Agreement.
2. SAAS ACCESS AND AUTHORIZED USERS
2.1. ADMINISTRATIVE USERS. During the configuration and set-up process for the SaaS, Customer will identify an administrative user name and password for Customer’s Drip7 Inc. account. Drip7 Inc. reserves the right to refuse registration of, or cancel user names and passwords it deems inappropriate.
2.2. AUTHORIZED USERS. Customer may allow such number of Customer’s employees and/or independent
contractors to use the SaaS on behalf of Customer as “Authorized Users”, subject to the limitations set forth on the Order Acknowledgement. As a condition to access and use of the SaaS, Customer is responsible for ensuring that any Authorized Users use of the SaaS is in accordance with the terms and conditions of this SaaS Agreement. Customer will immediately notify Drip7 Inc. of any violation of the terms of any of the foregoing by any Authorized Users upon becoming aware of such violation, and is liable for any breach of the foregoing agreements by any Authorized User
2.3. ACCOUNT RESPONSIBILITY. Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its Drip7 Inc. account, passwords (including but not limited to administrative and user passwords) and files. Drip7 Inc. is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
3. ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES
3.1. SAAS RESTRICTIONS. Customer will not, nor permit or encourage any third party to, directly or indirectly (i)
reverse engineer, decompile, disassemble, decode, decrypt, or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the SaaS or any SaaS, documentation or data related to the SaaS (“IP”); (ii) modify, translate, adapt, alter or create derivative works based on the SaaS or any IP; (iii) modify, remove or obstruct any proprietary notices or labels; (iv) distribute, sublicense, rent, lease, loan, or grant any third party access to or use pf the Services; or (v) use the SaaS or any IP in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such SaaS or. For the avoidance of doubt, the SaaS, including all user-visible aspects, are the Confidential Information of Drip7 Inc., and Customer will comply with Section 4 with respect thereto.
3.2. CUSTOMER COMPLIANCE. Customer shall use, and will ensure that all Authorized Users use, the SaaS, IP, and
3.3. COOPERATION. Customer shall provide all cooperation and assistance as Drip7 Inc. may reasonably request to enable Drip7 Inc. to exercise its rights and perform its obligations under, and in connection with, this SaaS Agreement.
3.4. TRAINING AND EDUCATION. Customer shall use commercially reasonable efforts to cause Authorized Users to be, at all times, educated and trained in the proper use and operation of the SaaS and to ensure that the SaaS is used in accordance with applicable manuals, instructions, specifications and documentation provided by Drip7 Inc. from time to time.
3.5. CUSTOMER SYSTEMS. Customer shall be responsible for obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use the SaaS, including modems, hardware, servers, SaaS, operating systems, networking, web servers and the like.
3.6. RESTRICTIONS ON EXPORT. Customer may not remove or export from the United States or allow the export or re- export of the SaaS, or any direct product thereof in violation of any restrictions, laws or regulations of any United States or foreign agency or authority.
4.1. CONFIDENTIAL INFORMATION. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has been, and may be, exposed to or acquired business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Confidential Information of Drip7 Inc. includes, without limitation, non-public information regarding features, functionality and performance of the SaaS and IP. Confidential Information of Customer includes, without limitation, non-public data provided by Customer to Drip7 Inc. to enable the provision of access to, and use of, the Services as well as all content, data and information recorded and stored by the SaaS for Customer (“Customer Data”), The terms and conditions of this SaaS Agreement, including all pricing and related metrics, are Drip7 Inc.’s Confidential Information.
4.2. EXCEPTIONS. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
4.3. NON-USE AND NON-DISCLOSURE. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this SaaS Agreement.
4.4. COMPELLED DISCLOSURE. Notwithstanding Section 4.3, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential
Information, in whole or in part.
4.5. REMEDIES FOR BREACH OF OBLIGATION OF CONFIDENTIALITY. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
5. PROPRIETARY RIGHTS
5.1. OWNERSHIP. Customer owns all right, title and interest in and to the Customer Data. Drip7 Inc. owns and retain all right, title and interest in and to (i) the SaaS, IP and the Services and all improvements, enhancements or modifications thereto, (ii) any SaaS, applications, inventions or other technology developed in connection with the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”). To the extent Customer acquires any right, title or interest in any Services IP, Customer hereby assigns all of its right, title and interest in such Services IP to Drip7 Inc..
5.2. CUSTOMER DATA AND VENDOR INFORMATION LICENSE. Customer hereby grants to Drip7 Inc. a non-exclusive, transferable, sublicensable, worldwide and royalty-free license to use and otherwise exploit (i) Customer Data to provide the Services to Customer hereunder and as necessary or useful to monitor and improve the SaaS, both during and after the Term. For the avoidance of doubt, Drip7 Inc. may use, reproduce and disclose SaaS and Services related information, data and material that is anonymized, de- identified, or otherwise rendered not reasonably associated or linked to Customer or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by Drip7 Inc. It is Customer’s sole responsibility to back-up Customer Data during the Term, and Customer acknowledges that it will not have access to Customer Data through Drip7 Inc. or any SaaS following the expiration or termination of this SaaS Agreement.
5.3. NO OTHER RIGHTS. No rights or licenses are granted except as expressly set forth herein. Customer acknowledges and agrees that the SaaS and IP are the confidential, proprietary, trade secret and copyrighted work of Drip7 Inc. any use of the SaaS or IP beyond the terms of this SaaS Agreement constitute an infringement of Drip7 Inc.’s rights entitling Drip7 Inc. to seek all remedies available to it, including, without limitation, those under title 17 of the United States Code with respect to copyright infringement.
6. FEES & PAYMENT
6.1. FEES. In exchange for the Services, Customer will pay Drip7 Inc. the fees described in Exhibit 1. All fees are payable according to the terms set forth on the Order Acknowledgment, and if none are set forth, within 30 days of the invoice date. Fees are non-refundable, except as expressly provided in this SaaS Agreement. Customer will have fifteen (15) days after receipt of notice from Drip7 Inc. that a payment is late to cure such late payment, but if Customer fails to pay such amount(s), Drip7 Inc. will have the right to terminate the license for the applicable SaaS and/or charge a late payment fee on the unpaid balance of one percent (1.0%) per month, or the highest rate allowed by law, whichever is lower. In addition to Drip7 Inc.’s other remedies, Customer shall reimburse Drip7 Inc. for its reasonable legal fees or costs incurred in collecting any overdue and unpaid amounts with respect to any invoice
6.2. PAYMENT DISPUTES. If Customer believes that Drip7 Inc. has billed Customer incorrectly, Customer must contact Drip7 Inc. no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Drip7 Inc.’s customer support department or the applicable Account Manager. Any disputes not raised within this time period are deemed waved.
6.3. TAXES. Customer shall pay, and shall be labile for, all taxes relating to Drip7 Inc.’s provision of the Services hereunder. Drip7 Inc. shall pay, and shall be liable for, taxes based on its net income or capital. NO DEDUCTIONS OR SETOFFS. All amounts payable to Drip7 Inc. hereunder shall be paid by Customer to Drip7 Inc. in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law.
6.5. SUBPOENA EXPENSES. If Drip7 Inc. has to provide information in response to a subpoena related to Customer’s account, then Drip7 Inc. may charge Customer for Drip7 Inc.’s costs. Such charges may include fees for attorney and employee time spent retrieving records, preparing documents and participating in depositions or other legal process as well as other costs incurred in complying with such legal processes.
7. TERM AND TERMINATION
7.1. TERM. This SaaS Agreement will commence on the Effective Date and continue in full force and effect for the duration of the period set forth on Exhibit 1, unless terminated earlier as provided below (the “Term”).
7.2. Termination by Drip7 Inc. Drip7 Inc. may terminate this SaaS Agreement upon 30 days written notice to Customer if:
7.2.1. Customer has a receiver or an administrative receiver appointed, or the Licensee becomes subject, as debtor, to the jurisdiction of any bankruptcy court, enters into any voluntary arrangement with its creditors or ceases, threatens to cease to carry on business or any of the foregoing occurs under a local law equivalent. Any termination under this Section 7.2.1 relieves Drip7 Inc. of the obligation for the performance of this SaaS Agreement;
7.2.2. The Customer fails to pay within thirty (30) days of its due date, or within any agreed period of grace, any sum due under this SaaS Agreement or any exhibit; or
7.2.3. The Customer commits any material breach of any other term of this SaaS Agreement which is not remedied within thirty (30) days of a written request to do so.
7.3. TERMINATION BY CUSTOMER. Customer may terminate this SaaS Agreement upon 30 days written notice to Drip7 Inc. if Drip7 Inc. commits any material breach of this SaaS Agreement which is not remedied within 30 days of a written request to do so, or if such remedy is not reasonably capable of being completed in such 30 day time period, for which a remedy has not been commenced and consistently pursued.
7.4. EFFECT OF TERMINATION. Upon termination of the Agreement, Customer shall immediately cease all use of, and all access to, the Services and Drip7 Inc. shall immediately cease providing the Services. Termination relieves Drip7 Inc. of any obligations of performance with respect to the Services. All Fees paid as of the date of termination are non-refundable, except to the extent expressly provided by this SaaS Agreement. Any and all Fees that would have become payable had the SaaS Agreement remained in effect will become immediately due and payable.
7.5. SURVIVAL. Sections 3.1, 4–6, 7.2, 7.4, and 9–16 survive any termination or expiration of this SaaS Agreement. All other rights and obligations shall be of no further force or effect.
8. WARRANTY AND DISCLAIMER
8.1. LIMITED SUPPORT SERVICES WARRANTIES. Drip7 Inc.’s sole warranty for the Support Services is set forth in the SLA.
9. INDEMNITY AND LIMITATION OF LIABILITY
9.1. INDEMNIFICATION BY DRIP7 INC. Drip7 Inc. will defend Customer against any claim, suit, demand, or action made or brought against Customer by a third party alleging that the Services, or Customer’s use or access thereof in accordance with this SaaS Agreement, infringes any intellectual property rights of such third party, and will indemnify and hold harmless Customer from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) finally awarded against Customer in connection with or in settlement of any such claim, suit, demand, or action. The foregoing obligations do not apply with respect to portions or components of any SaaS or the Services (i) not supplied by Drip7 Inc., (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery, or granting of access, by Drip7 Inc., (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this SaaS Agreement. If, due to a claim of infringement, a SaaS is held by a court of competent jurisdiction to be or is believed by Drip7 Inc. to be infringing, Drip7 Inc. may, at its option and expense (a) replace or modify such SaaS to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using such Platform, or (c) if neither of the foregoing is commercially practicable, terminate this SaaS Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for such Platform. This Section states Customer’s sole and exclusive remedies for claims of infringement.
9.2. LIMITATION OF LIABILITY. In no event shall:
9.2.1. EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY INCLUDING DATA PROTECTION CLAIMS EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY CUSTOMER FOR THE SERVICES HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), OR
9.2.2. EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS, LOST DATA, LOST GOODWILL, LOST BUSINESS, LOST REVENUES OR DOWN TIME OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW
10. GOVERNING LAW AND DISPUTE RESOLUTION .This SaaS Agreement is governed in all respects by the laws of the State of Washington, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this SaaS Agreement or to the rights or duties of the parties under this SaaS Agreement. Any dispute arising out of or relating to this SaaS Agreement, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“ AAA”). Either party may send a notice to the other party of its intention to file a case with the AAA under this Section (“Arbitration Notice”). The arbitration will be conducted in Spokane, Washington by a single arbitrator knowledgeable in government contracting matters and the commercial aspects of “SaaS as a service” arrangements and intellectual property. The parties will mutually appoint an arbitrator within thirty (30) days of the Arbitration Notice. If the parties are unable to agree on an arbitrator, then the AAA will appoint an arbitrator who meets the foregoing knowledge requirements. The arbitration hearing will commence within sixty (60) days after the appointment of the arbitrator and the hearing will be completed and an award rendered in writing within sixty (60) days after the commencement of the hearing. Prior to the hearing, each party will have the right to take up to four (4) evidentiary depositions, and exchange two (2) sets of document production requests and two sets, each, of not more than ten (10) interrogatories. The arbitrator will provide detailed written explanations to the parties to support their award and regardless of outcome, each party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.
11. SECURITY. Drip7 Inc may from time to time host and/or maintain SaaS using a third party technology service provider and Customer acknowledges that Drip7 Inc. cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.
12. PUBLICITY. Customer agrees that Drip7 Inc. may identify Customer as a customer and use Customer’s logo and trademark in Drip7 Inc.’s promotional materials. Customer may request that Drip7 Inc. stop doing so by submitting an email to info@Drip7.tech at any time. Customer acknowledges that it may take Drip7 Inc. up to 30 days to process such request. Notwithstanding anything herein to the contrary, Customer acknowledges that Drip7 Inc. may disclose the existence and terms and conditions of this SaaS Agreement to its advisors, actual and potential sources of financing and to third parties for purposes of due diligence.
13. NOTICES. All notices, consents, and other communications between the parties under or regarding this SaaS Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided on the Order Acknowledgment. All notices, consents and other communications between the parties under a Statement of Services will be sent to the recipient’s address specified thereon. All communications will be deemed to have been received on the date actually received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.
14. FORCE MAJEURE. Drip7 Inc. is not responsible nor liable for any delays or failures in performance from any cause beyond its reasonable control, including, but not limited to acts of God, actions or decrees of governmental authorities, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, inability to obtain necessary products, components or assistance from third party suppliers or distributors, limitations on the availability of telephone or internet transmission facilities, or acts or omissions of other third parties or Customer or any Authorized User..
15. ASSIGNMENT. Neither party may assign this SaaS Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. Drip7 Inc. may sublicense any or all of its obligations hereunder. For the avoidance of doubt, a third party technology provider that provides features or functionality in connection with a SaaS shall not be deemed a sublicensee under this SaaS Agreement.
16. GENERAL PROVISIONS. If any provision of this SaaS Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this SaaS Agreement will otherwise remain in full force and effect and enforceable. This SaaS Agreement, together with all exhibits, annexes and addenda hereto and thereto is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this SaaS Agreement. Failure, delay or waiver by either party of any terms or conditions here will not be consider to be either a waiver or forfeiture of such rights for any persisting or subsequent breach. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this SaaS Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever. This Agreement is binding upon and inures to the benefit of all successors and permitted assigns. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this SaaS Agreement as a whole and not to any particular Section or paragraph of this SaaS Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” or “Exhibit” are references to a section of, or exhibit to this SaaS Agreement; and (iv) derivative forms of defined terms will have correlative meanings.