SaaS Subscription Agreement

Definitions

"Affiliate" means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest.

"Applicable Data Protection Laws" means the Applicable Laws that govern how the Cloud Service may process or use an individual's personal information, personal data, personally identifiable information, or other similar term.

"Applicable Laws" means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern Provider or Customer.

"Confidential Information" means information in any form disclosed by or on behalf of a party (the "Discloser") to the other party (the "Recipient") in connection with this Agreement that (a) the Discloser identifies as "confidential", "proprietary", or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Customer's Confidential Information includes non-public Customer Content, and Provider's Confidential Information includes non-public information about the Product.

"Covered Claim" means either a Provider Covered Claim or a Customer Covered Claim.

"Customer Content" means data, information, or materials submitted by or on behalf of Customer or Users to the Product, and the output the Product generates from them for Customer, but excludes Feedback and Usage Data.

"Documentation" means the usage manuals and instructional materials for the Cloud Service or Software that are made available by Provider.

"Feedback" means suggestions, feedback, or comments about the Product or related offerings.

"Force Majeure Event" means an unforeseen event outside a party's reasonable control where the affected party took reasonable measures to avoid or mitigate the impacts of the event. Examples include unpredicted natural disasters like a major earthquake, war, pandemic, riot, act of terrorism, or public utility or internet failure.

"High Risk Activity" means any situation where the use or failure of the Product could be reasonably expected to lead to death, bodily injury, or environmental damage. Examples include full or partial autonomous vehicle technology, medical life-support technology, emergency response services, nuclear facilities operation, and air traffic control.

"Indemnifying Party" means a party when it is providing protection for a particular Covered Claim, and "Protected Party" means a party when it is receiving that protection.

"Personal Data" has the meaning given to personal information, personal data, personally identifiable information, or any similar term in the Applicable Data Protection Laws.

"Product" means the Cloud Service, Software, and Documentation.

"Prohibited Data" means (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act; (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver's license numbers, or other unique and private government ID numbers; (d) special categories of personal data under the Applicable Data Protection Laws; and (e) other similar categories of sensitive information under the Applicable Data Protection Laws.

"Software" means the client-side software or applications made available by Provider for Customer to install, download (whether onto a machine or in a browser), or execute as part of the Product.

"Usage Data" means data and information about the provision, use, and performance of the Product and related offerings based on Customer's or User's use of the Product, excluding Customer Content.

"User" means any individual who uses the Product on Customer's behalf or through Customer's account.

Service

During the Subscription Period and subject to this Agreement, Customer may (a) access and use the Cloud Service; and (b) copy and use the included Software and Documentation only as needed to access and use the Cloud Service, in each case for its internal business purposes.

During the Subscription Period, Provider will provide the Technical Support.

Customer is responsible for all actions on Users' accounts and for all Users' compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised.

Customer may, but is not required to, give Provider Feedback, in which case Customer gives Feedback "AS IS". Provider may use all Feedback freely without any restriction or obligation. In addition, Provider may collect and analyze Usage Data, and Provider may freely use Usage Data to maintain, improve, enhance, and promote Provider's products and services without restriction or obligation. However, Provider may only disclose Usage Data to others if the Usage Data is aggregated and does not identify Customer or Users.

Provider may copy, display, modify, and use Customer Content only as needed to provide and maintain the Product and related offerings. Customer is responsible for the accuracy and content of Customer Content.

Provider will not use Customer Content to train, fine-tune, or otherwise develop any artificial intelligence or machine learning model, other than a model used only to provide the Product to Customer, without Customer's prior written consent.

Provider may use subcontractors to perform its obligations, but remains responsible for their compliance with this Agreement.

Restrictions & Obligations

Except as expressly permitted by this Agreement, Customer will not (and will not allow anyone else to): (i) reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Product (except to the extent Applicable Laws prohibit this restriction); (ii) provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Product; (iii) remove any proprietary notices or labels; (iv) copy, modify, or create derivative works of the Product; (v) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Product; (vi) access accounts, information, data, or portions of the Product to which Customer does not have explicit authorization; (vii) use the Product to develop a competing service or product; (viii) use the Product with any High Risk Activities or with any activity prohibited by Applicable Laws; (ix) use the Product to obtain unauthorized access to anyone else's networks or equipment; or (x) upload, submit, or otherwise make available to the Product any Customer Content to which Customer and Users do not have the proper rights. Use of the Product must comply with all Documentation.

If Customer (a) has an outstanding, undisputed balance on its account for more than 30 days; (b) breaches the restrictions in the Restrictions & Obligations clause; or (c) uses the Product in violation of this Agreement or in a way that materially and negatively impacts the Product or others, then Provider may temporarily suspend Customer's access to the Product after giving Customer notice and a reasonable opportunity to resolve the underlying issue, except where immediate suspension is reasonably necessary to protect the Product, Provider, or others. Provider will promptly reinstate Customer's access when Customer resolves the underlying issue.

Privacy & Security

Provider will implement and maintain reasonable administrative, technical, and physical safeguards, consistent with industry standards, designed to protect Customer Content against unauthorized access, use, disclosure, alteration, or destruction. Provider will notify Customer without undue delay after becoming aware of a security incident involving unauthorized access to Customer Content, and will give Customer the information and cooperation it reasonably needs to respond to the incident and meet its legal obligations.

If Customer will submit Personal Data that Applicable Data Protection Laws require to be covered by a data processing agreement, the parties will first enter into the DPA. Each party will comply with its obligations in the DPA, and the DPA controls over this Agreement as to Personal Data.

To the extent Provider processes personal information on Customer's behalf that is subject to the California Consumer Privacy Act, Provider acts as Customer's service provider, processes it only for the specific business purpose of hosting and providing the Cloud Service and the Technical Support to Customer, which is the only purpose for which Customer discloses it, and will: (a) not sell or share it; (b) not retain, use, or disclose it for any other purpose, or outside the direct business relationship between the parties, except as that Act permits; (c) not combine it with personal information from other sources, except as that Act permits; (d) comply with that Act and provide the same level of privacy protection it requires; (e) notify Customer if it can no longer meet its obligations under that Act; (f) allow Customer, on notice, to take reasonable and appropriate steps to verify Provider's compliance and to stop and remediate unauthorized use; and (g) assist Customer in responding to consumer requests under that Act.

Provider will maintain a current list of the subprocessors that process Customer Content, give Customer at least 30 days notice before adding or replacing one, and impose on each data protection obligations no less protective than those in this Agreement. If Customer reasonably objects on data protection grounds and the parties cannot resolve the objection, Customer may terminate the affected Product and receive a prorated refund of prepaid Fees for the remainder of the Subscription Period.

Customer will not (and will not allow anyone else to) submit Prohibited Data to the Product unless Provider agrees in writing or the Documentation describes that kind of data as data the Cloud Service is designed to process.

Payment & Taxes

All Fees are in U.S. Dollars unless the Fees state another currency, and are exclusive of taxes. Except for prorated refunds of prepaid Fees expressly allowed by this Agreement, Fees are non-refundable.

Provider will invoice the Fees annually in advance, and Customer will pay each invoice within 30 days after the invoice date.

Customer is responsible for all duties, taxes, and levies that apply to Fees, including sales, use, VAT, GST, or withholding, that Provider itemizes and includes in an invoice. However, Customer is not responsible for Provider's income taxes.

If Customer has a good-faith disagreement about the Fees charged or invoiced, Customer must notify Provider about the dispute before payment is due, or within 30 days of an automatic payment, and must pay all undisputed amounts on time. The parties will work together to resolve the dispute within 15 days. If no resolution is agreed, each party may pursue any remedies available under this Agreement or Applicable Laws.

Term & Termination

This Agreement starts on its date, continues for the initial period of the Subscription Period, and automatically renews for additional periods equal to that initial period unless one party gives the other notice of non-renewal at least 30 days before the end of the then-current period.

If New York law is the Governing Law, Provider will give Customer written notice, served personally or by certified mail, at least 15 days and not more than 30 days before the last day on which Customer may give notice of non-renewal, calling Customer's attention to the automatic renewal and that deadline.

Either party may terminate this Agreement (a) if the other party fails to cure a material breach of this Agreement within 30 days after notice; or (b) immediately upon notice if the other party (i) materially breaches this Agreement in a manner that cannot be cured; (ii) dissolves or stops conducting business without a successor; (iii) makes an assignment for the benefit of creditors; or (iv) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days.

Either party may terminate this Agreement upon notice if a Force Majeure Event prevents the Product from materially operating for 30 or more consecutive days. Provider will pay to Customer a prorated refund of any prepaid Fees for the remainder of the Subscription Period. A Force Majeure Event does not excuse Customer's obligation to pay Fees accrued before termination.

Upon any expiration or termination: (a) Customer will no longer have any right to use the Product; (b) for 30 days, Customer may export Customer Content using the Product's standard export features, after which Provider will delete Customer Content within 60 days, unless Applicable Laws require Provider to retain it; (c) each Recipient will return or destroy Discloser's Confidential Information in its possession or control; and (d) Provider will submit a final invoice for all outstanding Fees accrued before termination, which Customer will pay under the Payment & Taxes clause.

Provider's rights in Feedback and Usage Data under the Service clause, and the Restrictions & Obligations, Payment & Taxes (for Fees accrued or payable before expiration or termination), Term & Termination, Representations & Warranties, Disclaimer of Warranties, Limitation of Liability, Indemnification, Confidentiality, Reservation of Rights, General Terms, and Definitions clauses, survive expiration or termination of this Agreement. Each Recipient may retain Discloser's Confidential Information in accordance with its standard backup or record retention policies or as required by Applicable Laws, and the Confidentiality clause continues to apply to it.

Representations & Warranties

Each party represents and warrants to the other that: (a) it has the legal power and authority to enter into this Agreement; (b) it is duly organized, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its origin; and (c) it will comply with all Applicable Laws in performing its obligations or exercising its rights in this Agreement.

Customer represents and warrants that it, all Users, and anyone submitting Customer Content each have and will continue to have all rights necessary to submit or make available Customer Content to the Product and to allow the use of Customer Content as described in this Agreement.

Provider represents and warrants to Customer that it will not materially reduce the general functionality of the Cloud Service during the Subscription Period.

If Provider breaches the functionality warranty it gives in the Representations & Warranties clause, Customer must give Provider notice (with enough detail for Provider to understand or replicate the issue) within 45 days of discovering the issue. Within 45 days of receiving sufficient details, Provider will attempt to restore the general functionality of the Cloud Service. If Provider cannot resolve the issue, Customer may terminate this Agreement and Provider will pay to Customer a prorated refund of prepaid Fees for the remainder of the Subscription Period. Provider's restoration obligation and Customer's termination right are Customer's only remedies for a breach of that warranty.

Disclaimer of Warranties

PROVIDER MAKES NO GUARANTEES THAT THE PRODUCT WILL ALWAYS BE SAFE, SECURE, OR ERROR-FREE, OR THAT IT WILL FUNCTION WITHOUT DISRUPTIONS, DELAYS, OR IMPERFECTIONS. THE WARRANTIES IN THE REPRESENTATIONS & WARRANTIES CLAUSE DO NOT APPLY TO ANY MISUSE OR UNAUTHORIZED MODIFICATION OF THE PRODUCT, NOR TO ANY PRODUCT OR SERVICE PROVIDED BY ANYONE OTHER THAN PROVIDER. EXCEPT FOR THOSE WARRANTIES, PROVIDER AND CUSTOMER EACH DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THESE DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS.

Limitation of Liability

EACH PARTY'S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT BE MORE THAN THE GENERAL CAP AMOUNT. HOWEVER, FOR CLAIMS ARISING FROM A PARTY'S BREACH OF THE PRIVACY & SECURITY OR CONFIDENTIALITY CLAUSES, THAT PARTY'S TOTAL CUMULATIVE LIABILITY WILL NOT BE MORE THAN three times the General Cap Amount, AND THOSE CLAIMS DO NOT REDUCE THE GENERAL CAP AMOUNT. THESE CAPS DO NOT APPLY TO CUSTOMER'S OBLIGATION TO PAY FEES OR TO A PARTY'S OBLIGATIONS UNDER THE INDEMNIFICATION CLAUSE.

EXCEPT FOR A BREACH OF THE CONFIDENTIALITY CLAUSE AND A PARTY'S OBLIGATIONS UNDER THE INDEMNIFICATION CLAUSE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR REVENUES (WHETHER DIRECT OR INDIRECT), OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES RELATING TO THIS AGREEMENT, EVEN IF THE PARTY IS INFORMED OF THE POSSIBILITY OF THIS TYPE OF DAMAGE IN ADVANCE.

THE LIMITATIONS AND WAIVERS IN THIS LIMITATION OF LIABILITY CLAUSE APPLY TO ALL LIABILITY, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, BREACH OF STATUTORY DUTY, OR OTHERWISE.

Nothing in this Agreement will limit, exclude, or restrict a party's liability (a) to the extent prohibited by Applicable Laws, or (b) for its gross negligence, willful misconduct, or fraud.

Indemnification

(a) Provider will indemnify, defend, and hold harmless Customer from and against all Provider Covered Claims made by someone other than Customer, Customer's Affiliates, or Users, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys' fees and other legal expenses, that arise from the Provider Covered Claims. (b) Customer will indemnify, defend, and hold harmless Provider from and against all Customer Covered Claims made by someone other than Provider or its Affiliates, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys' fees and other legal expenses, that arise from the Customer Covered Claims.

The Indemnifying Party's obligations are contingent upon the Protected Party: (a) promptly notifying the Indemnifying Party of each Covered Claim for which it seeks protection; (b) providing reasonable assistance to the Indemnifying Party at the Indemnifying Party's expense; and (c) giving the Indemnifying Party sole control over the defense and settlement of each Covered Claim. A Protected Party may participate in a Covered Claim for which it seeks protection with its own attorneys only at its own expense. The Indemnifying Party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the Protected Party without the prior written consent of the Protected Party.

If required by settlement or court order, or if deemed reasonably necessary in response to a Provider Covered Claim, Provider may: (a) obtain the right for Customer to continue using the Product; (b) replace or modify the affected component of the Product without materially reducing the general functionality of the Product; or (c) if neither (a) nor (b) is reasonable, terminate this Agreement and issue a prorated refund of prepaid Fees for the remainder of the Subscription Period.

(a) Provider's obligations as an Indemnifying Party will not apply to Provider Covered Claims that result from (i) modifications to the Product that were not authorized by Provider or that were made in compliance with Customer's instructions; (ii) unauthorized use of the Product, including use in violation of this Agreement; (iii) use of the Product in combination with items not provided by Provider; or (iv) use of an old version of the Product where a newer release would avoid the Provider Covered Claim. (b) Customer's obligations as an Indemnifying Party will not apply to Customer Covered Claims that result from the unauthorized use of the Customer Content, including use in violation of this Agreement.

This Indemnification clause, together with any termination rights, describes each Protected Party's exclusive remedy and each Indemnifying Party's entire liability for a Covered Claim.

Confidentiality

Except as otherwise authorized in this Agreement or as needed to fulfill its obligations or exercise its rights under this Agreement, Recipient will not (a) use Discloser's Confidential Information; nor (b) disclose Discloser's Confidential Information to anyone else. In addition, Recipient will protect Discloser's Confidential Information using at least the same protections Recipient uses for its own similar information but no less than a reasonable standard of care.

Confidential Information does not include information that (a) Recipient knew without any obligation of confidentiality before disclosure by Discloser; (b) is or becomes publicly known and generally available through no fault of Recipient; (c) Recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure; or (d) Recipient independently developed without use of or reference to Discloser's Confidential Information.

Recipient may disclose Discloser's Confidential Information to the extent required by Applicable Laws if, unless prohibited by Applicable Laws, Recipient provides Discloser reasonable advance notice of the required disclosure and reasonably cooperates, at Discloser's expense, with Discloser's efforts to obtain confidential treatment for the Confidential Information.

Recipient may disclose Discloser's Confidential Information to Users, employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Confidentiality clause and Recipient remains responsible for everyone's compliance with them.

Reservation of Rights

Except for the limited rights granted to Customer in the Service clause, Provider retains all right, title, and interest in and to the Product, whether developed before or after the date of this Agreement. Except for Provider's limited rights in Customer Content under the Service clause, Customer retains all right, title, and interest in and to the Customer Content.

General Terms

This Agreement is the only agreement between the parties about its subject and supersedes all prior or contemporaneous statements (whether in writing or not) about its subject. Terms in any purchase order, vendor portal, or similar document of either party do not apply unless both parties expressly agree to them in a signed writing.

Any waiver, modification, or change to this Agreement must be in writing and signed or electronically accepted by each party. If any term of this Agreement is determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of this Agreement will remain in full force and effect. The failure of a party to enforce a term or to exercise an option or right in this Agreement will not constitute a waiver by that party of the term, option, or right.

The Governing Law will govern all interpretations and disputes about this Agreement, without regard to its conflict of laws provisions. The parties will bring any legal suit, action, or proceeding about this Agreement in the Chosen Courts and each party irrevocably submits to the exclusive jurisdiction of the Chosen Courts.

Despite the choice of the Chosen Courts, a breach of the Confidentiality clause or the violation of a party's intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of the Confidentiality clause or violation of a party's intellectual property rights, the non-breaching or non-violating party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.

Except where this Agreement provides for an exclusive remedy, seeking or exercising a remedy does not limit the other rights or remedies available to a party.

Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other party. However, either party may assign this Agreement upon notice if the assigning party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any attempted but non-permitted assignment is void. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

If Provider gives Customer access to a beta, prerelease, or not generally available feature or version of the Product, it is provided "AS IS", the warranties in the Representations & Warranties clause do not apply to it, and Provider may modify or remove it at its discretion.

Neither party may use the other party's name or logo in marketing, or publicly announce this Agreement, without the other party's prior written approval.

Any notice, request, or approval about this Agreement must be in writing and sent to the address or email address each party designates for notices in this Agreement or by later notice. Notices will be deemed given (a) upon confirmed delivery if by email, registered or certified mail, or personal delivery; or (b) two days after mailing if by overnight commercial delivery.

The parties are independent contractors, not agents, partners, or joint venturers. Neither party is authorized to bind the other to any liability or obligation.

There are no third-party beneficiaries of this Agreement.

Neither party will be liable for a delay or failure to perform its obligations under this Agreement if caused by a Force Majeure Event. However, this does not excuse Customer's obligations to pay Fees.

Customer may not export, re-export, or allow access to the Product in violation of any export control or sanctions laws of the United States, including those administered by the U.S. Department of Commerce and the U.S. Department of the Treasury's Office of Foreign Assets Control, or of any other applicable government. Customer represents and warrants that it is not (a) located in, organized under the laws of, or ordinarily resident in a country or region subject to comprehensive U.S. sanctions; (b) designated on any list of prohibited or restricted parties maintained by the U.S. government or another applicable government, including the Specially Designated Nationals and Blocked Persons List; or (c) 50% or more owned by one or more designated parties. Provider may terminate this Agreement immediately on notice if needed to comply with export control or sanctions laws.

The Cloud Service and Software are deemed "commercial items" or "commercial computer software" according to FAR section 12.212 and DFAR section 227.7202, and the Documentation is "commercial computer software documentation" according to DFAR section 252.227-7014(a)(1) and (5). Any use, modification, reproduction, release, performance, display, or disclosure of the Product by the U.S. Government will be governed solely by the terms of this Agreement and all other use is prohibited.

Neither party will take any action that would be a violation of any Applicable Laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Provider or Customer in retaining or obtaining business. Examples of these kinds of laws include the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010.

Section titles are for convenience and reference only. All uses of "including" and similar phrases are non-exhaustive and without limitation. The United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transaction Act do not apply to this Agreement.

This Agreement may be signed in counterparts, including by electronic copies or acceptance mechanism. Each copy will be deemed an original and all copies, when taken together, will be the same agreement.