SOFTWARE AS A SERVICE AGREEMENT

SOFTWARE AS A SERVICE AGREEMENT

This agreement (the “agreement”) is entered into on the ______ day of _____________, 20____.(“effective date”),between__________________________________(the”Customer”)and______________________

(the “Company”). The Company and Customer may each be referred to as a “Party” or collectively as the “Parties” in this agreement and includes that Party’s successors and assigns.

In consideration of covenants and agreements contained in this agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, Parties agree to the following terms and conditions and to be bound thereby:

1. COMMENCEMENT AND DURATION

This agreement shall be valid from __________________until __________________. (Subscription Term)

• TERMS AND CONDITIONS

1.Payment terms for Subscription: %100 with Purchase Order.

2. Payment terms for configuration and Training: %100 After completing configuration and Training.

3. (Option): $5 per year for every 1GB Extra Disk Space upgrade.

• SAAS SERVICES

During the Subscription Term, Customer will receive a nonexclusive, non-assignable, worldwide right to access and use the SaaS Services solely for their internal business operations subject to the terms of this Agreement. The Customer agrees to be co-operative, adhere to applicable laws in the provision of these services.

• RESTRICTIONS

Customer shall not, and shall not permit anyone to: (i) copy or republish the SaaS Services or Software, (ii) make the SaaS Services available to any person other than authorized Identity Cube users, (iii) use or access the SaaS Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the SaaS Services or Documentation, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SaaS Services or in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law, or (vii) access the SaaS Services or use the Documentation in order to build a similar product or competitive product. Subject to the limited licenses granted herein, the Company shall own all right, title and interest in and to the Software, services, Documentation, and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. Customer agrees to assign all right, title and interest it may have in the foregoing to the Company.

• DISCLAIMERS
• Customer acknowledges that Company’s ability to deliver the SaaS Services may depend upon the accuracy and timeliness of  their information and assistance.
• Customer acknowledges that Company exercises no control over the content of the information transmitted by Customer or the Identity Cube users through the SaaS Services.
• Customer shall be solely responsible for the acts and omissions of its Administrator Users. Company shall not be liable for any loss of data or functionality caused directly or indirectly by the Administrator Users.
• Customer is solely responsible for collecting, inputting and updating all Customer Content stored on the Host, and for ensuring that the Customer Content does not violate any laws or this agreement.
• Subject to the terms and conditions of this Agreement, Customer shall grant to Company a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the SaaS Services to Customer.
• Customer retains ownership and intellectual property rights in and to its Customer Content. Company or its licensors retain all ownership and intellectual property rights to the services, Software programs, and anything developed and delivered under the Agreement.
• Third party technology that may be appropriate or necessary for use with some Company programs is specified in the program Documentation or ordering document as applicable. Customer’s right to use such third-party technology is governed by the terms of the third-party technology license agreement specified by Company and not under the Agreement.
• Company shall have a worldwide, irrevocable, perpetual license to use and incorporate into the SaaS Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, including Users, relating to the operation of the SaaS Services.
• Fees are non-refundable subject to the Company’s discretion.
• Customer will reimburse Company for its reasonable, out-of-pocket travel and related expenses incurred in performing Services other than SaaS Services and the Maintenance Services. Company shall notify Customer prior to incurring any such expense.
• Company shall bill Customer for applicable taxes as a separate line item on each invoice. Customer shall be responsible for payment of all sales and use taxes, value added taxes (VAT), or similar charges relating to Customer’s purchase and use of the services. Customer shall not be liable for taxes based on Company’s net income, capital or corporate franchise.
• Either party may terminate this SaaS Agreement immediately upon a material breach by the other party that has not been cured within _______days after receipt of notice of such breach. Upon termination of this SaaS Agreement or expiration of the Subscription Term, Company shall immediately cease providing the SaaS Services and all usage rights granted under this SaaS Agreement shall terminate.
• Company reserves the right to suspend delivery of the SaaS Services if Customer fails to timely pay any undisputed amounts or any other breach. Suspension of the SaaS Services shall not release Customer of its payment or performance obligations under this SaaS Agreement. Customer agrees that Company shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the SaaS Services resulting from breach.
• Neither party may assign this SaaS Agreement or any right under this SaaS Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed;
• Company may anonymously compile statistical information related to the performance of the Services for purposes of improving the SaaS service, provided that such information does not identify Customer’s data or include Customer’s name.
• WARRANTIES

Company represents and warrants that it will provide the SaaS Services in a professional manner consistent with general industry standards and that the SaaS Services will perform substantially in accordance with the Documentation.

COMPANY WARRANTS THAT THE SAAS SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION. COMPANY DOES NOT GUARANTEE THAT THE SAAS SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT COMPANY WILL CORRECT ALL SAAS SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SAAS SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY COMPANY (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. NEITHER COMPANY NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL COMPANY OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR ANY USER’S DATA, FILES, OR PROGRAMS.

• LIMITATIONS OF LIABILITY

NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF COMPANY) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS SAAS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS SAAS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS SAAS AGREEMENT DURING ____________[insert period] PRECEDING THE DATE THE CLAIM AROSE. The foregoing limitations shall not apply to the parties’ obligations (or any breach thereof) under Sections entitled “Restriction”, “Indemnification”, or “Confidentiality”.

• INDEMNIFICATION

Indemnification by Company. If a third party makes a claim against Customer that the SaaS Services infringes any patent, copyright or trademark, or misappropriates any trade secret, or that Company’s negligence or willful misconduct has caused bodily injury or death, Company shall defend Customer and its directors, officers and employees against the claim at Company’s expense and Company shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Company, to the extent arising from the claim. Company shall have no liability for any claim based on (a) the Customer Content, (b) modification of the SaaS Services not authorized by Company, or (c) use of the SaaS Services other than in accordance with the Documentation and this SaaS Agreement. Company may, at its sole option and expense, procure for Customer the right to continue use of the SaaS Services, modify the SaaS Services in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay to Customer any amount paid by Customer with respect to the Subscription Term following the termination date.

Indemnification by Customer. If a third party makes a claim against Company that the Customer Content infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend Company and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.

Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.

• CONFIDENTIALITY

The Customer shall not disclose, directly or indirectly to any other person, any information concerning this agreement, whether such information is stated to be confidential or not, without the Company’s written permission. All information shall be treated as confidential unless stated otherwise. Upon termination of this SaaS Agreement and upon subsequent written request by the Company, the Customer shall immediately return confidential information or destroy such information and provide written certification of such destruction.

1. INDEPENDENT CONTRACTOR

The parties have the status of independent contractors, and nothing in this SaaS Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this SaaS Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.

1. FORCE MAJEURE

Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.

1. GOVERNING LAW AND DISPUTE RESOLUTION

This agreement is governed by the laws of the State of ______________________.Any dispute under this agreement shall be resolved by Mediation. Nothing in this section shall be construed as limiting the Court’s jurisdiction.

1. MISCELLANEOUS
2. If a court finds any provision of this agreement invalid or unenforceable, the remainder of this agreement shall be interpreted so as to best effect the intent of the parties.
3. This agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations, and understandings. The Parties will exercise utmost good faith in this agreement and comply with all applicable laws.
4. If any ambiguity is found in the agreement or various documents forming this agreement, the Company shall issue any necessary clarification or instruction.
5. Except where otherwise provided, failure by either Party to enforce any of these terms or conditions shall not be a waiver of their right to enforce them.
6. This agreement may not be amended, assigned, or transferred except in writing signed by both parties.
7. The article and section headings in this agreement are for convenience; they form in no part of this agreement and shall not affect its interpretation.
8. Any reference to the singular includes the plural and vice versa, and the male gender includes the female gender and vice versa
9. Each party signing this agreement either directly or through a representative is duly authorized to do so.
10. The parties may execute this agreement in counterparts, which taken together will constitute one instrument. Execution of a PDF copy will have the same force and effect as execution of an original, and an electronic signature will be deemed an original and valid signature.
11. Parties shall be served through their above-named addresses; either Party may change their addressees by reasonable written notice given to the other Party;

CUSTOMER:

COMPANY:

By signing below, the Parties agree to be bound by the terms of this agreement as of the Effective Date above.

CUSTOMER: COMPANY:

Signature: ___________________________       Signature: ____________________________________

Print Name: __________________________ Print Name and designation: ______________________

Title: _______________________________ Title: _________________________________________

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