JagSuite SaaS Agreement

Exhibit A

TERMS OF SERVICE

1.       Services Defined.

1.1   Provider agrees to provide the Services as detailed in the Order Form “JagSuite SaaS Agreement.” Provider undertakes to provide Services under this Agreement on a commercially reasonable basis.

 

1.2   Services may include, but are not limited to: (i) Software as a service solution, a standard software licensed under a separate end user license agreement (“Provider Software”); (ii) consulting services provided to Client (“Consulting”) and related deliverable items e.g. reports, various analysis, etc. (collectively “Deliverables”); (iii) custom software development; and (iv) upgrade services, support services, other implementation services, programming and application design 5and development, systems analysis and design, third-party program installation, conversion and implementation planning and installation evaluations.

2.       Proprietary Rights.

 

2.1   Intellectual Property Rights; Deliverables. For purposes of this Agreement, “Intellectual Property Rights” shall mean any and all proprietary rights of any kind, tangible or intangible, now known or hereafter existing, including without limitation copyrights, neighboring rights and moral rights; trade secret; trademark; and patent and other industrial property rights, and all registrations, and applications thereof now or hereafter in force in any jurisdiction throughout the world. “Deliverables” shall mean all work product, reports, dashboards, analysis, strategic analysis, etc. developed by Provider pursuant to the Scope of Services.

2.2   Client Intellectual Property. Client shall own all right, title and interest in and to all data provided to Provider pursuant to this Agreement (collectively “Client Data”). Notwithstanding anything to the contrary, Provider shall have the right to collect and analyze data and other information to use and perform various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and Provider, will be free (during and after the term) to (i) use such non-identifiable information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other offerings, and (ii) disclose such data solely in aggregate or other de-identified forms in connection with its business. No other rights or licenses are granted except as expressly set forth herein.  

2.3   Ownership of Deliverables. Provided that Client is not in breach of this Agreement, Provider hereby assigns all rights, title and interest (including but not limited to patent, copyright, trade secret, or other intellectual property rights) in and to the Deliverables prepared by Provider utilizing Client Data or other Client proprietary information as contemplated by the scope of this Agreement. 

2.4   Provider Software. This is a subscription to a service. Subject to the limited right expressed under this Agreement, Provider reserves all rights, title and interest in and to the Services, including all related Intellectual Property Rights. Client will explicitly not, directly or indirectly: reverse engineer, decompile, disassemble, copy, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the software solutions provided under this Agreement including modifying, translating, or creating derivative works based on the Services or any Provider Software (except to the extent expressly permitted by Provider or authorized within the Services).

2.5   Third Party Software. Client’s rights in third-party software, if any, and other data, programs and other materials provided by third parties, regardless of whether or not obtained with the assistance of Provider, shall be as provided in the applicable third party license agreement, and Client is solely responsible for compliance with such third party agreements and policies.

2.6   Provider Components. Client acknowledges that Provider, prior to or during the course of this Agreement, has or may develop tools, ideas, concepts, processes, methodologies, software, and know-how (“Provider Components”), some of which Provider may use in the performance of Services. The parties agree that Provider shall retain exclusive ownership of all such Provider Components, and shall be entitled to use any and all Provider Components in connection with the performance of Services for other parties. Provided that Client has paid Provider for the Provider Components provided under this Agreement, Provider hereby grants Client a limited, non-exclusive license to use any Provider Component incorporated in the Client’s Services solely to the extent as necessary for operation and maintenance of such Provider Software or Deliverables included in the Services. Client agrees not to use or distribute any such Provider Component on a stand-alone basis in any manner.

3.       Confidentiality. Each party acknowledges that it may receive or have access to Confidential Information, as defined herein, of the other party in the course of this Agreement. Each party agrees to maintain the confidentiality of the other party’s Confidential Information and agrees not to use it except in performing its obligations under this Agreement and not to disclose the Confidential Information to anyone except its employees, and advisors who need access to the Confidential Information to perform their obligations to Provider or the Client and who have agreed in writing to the restrictions on use and disclosure of Confidential Information set forth herein. “Confidential Information” means any business or technical information of Provider or Client that is designated by a party as “confidential” or “proprietary” at the time of disclosure or due to its nature or under the circumstances of its disclosure the party receiving such information knows or has reason to know should be treated as confidential or proprietary.

 

4.       Payment of Fees. Client shall pay to Provider the applicable fees in the time and manner detailed in the Order Form for the Services. Invoices shall be due within thirty days unless otherwise agreed to in writing. Failure to pay amounts due may result in termination or suspension of Services at the discretion of the Provider. All expenses associated with collections (including reasonable attorney’s fees) shall be the responsibility of the Client.

 

5.       Term and Termination.

5.1   This Agreement shall begin on the Effective Date for the Initial Term and shall automatically renew for consecutive periods as provided in the Order Form. This Agreement may be terminated only by either party upon written notice to the other party of any material breach of a term or condition of this Agreement and such breach is not addressed (i.e. putting a plan in place) within fifteen days following written notice from the party specifying the breach. Client shall be responsible for Services fees through the actual termination date. Notwithstanding anything else herein, as of the notice date of termination for any reason, Provider shall have no obligation to provide any further Services hereunder.

 

5.2   Immediately upon termination, Client shall pay Provider for all Services provided or performed, expenses incurred, and Provider delivered prior to the date of termination. Each party shall return to the other all property in each party’s possession or control, including all Confidential Information.

6.       Representations and Warranties.

6.1   Each party represents and warrants to the other party that (i) it has the right to enter into this Agreement and perform its obligations hereunder; (ii) it is organized under the laws of its jurisdiction in a corporate or equivalent form; (iii) to the best of its knowledge there are no claims, actions or proceedings against it (including without limitation bankruptcy, dissolution, liquidation, or any assignments for the benefit of creditors) that would impair its ability to honor all legal obligations hereunder; (iv) the person executing this Agreement on its behalf has been authorized to do so; and (v) the Agreement constitutes its valid, legal and binding obligations enforceable in accordance with its terms.

 

6.2   Client also warrants to Company that (a) all information and materials provided by Client under this Agreement do not and will not (i) use or include any confidential or proprietary information or trade secrets of any third party, unless Client has received a written license from the owner thereof to use as contemplated hereunder; and (ii) does not violate the rights of any third party in any jurisdiction, including but not limited to copyright, trade secret, trademarks, publicity, privacy, patents or other rights; and (b) Client has completed and received all authorizations, approvals and appropriations necessary for Client to perform its obligations under this Agreement.

 

6.3   Client acknowledges that Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. NOTWITHSTANDING THE FOREGOING, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from the use of the Services.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7.       Limitations of Liability and Indemnity.

7.1   NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS OR LOSS OF DATA) OR INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER THE BASIS OF LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTE OR ANY OTHER LEGAL THEORY, NOTWITHSTANDING ANYTHING ELSE HEREIN. PROVIDER’S TOTAL LIABILITY TO CLIENT UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO THE PAYMENTS ACTUALLY RECEIVED FROM CLIENT FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE A CLAIM FOR LIABILITY ARISES HEREUNDER.

7.2   Provider shall indemnify and hold harmless Client and its officers, contractors and employees (“Personnel”) from and against any loss, claim, damage or liabilities (or actions in respect thereof that may be asserted by any third party) that may result from any third party claims arising out of or relating to breach of the representations and warranties provided in this Agreement and shall reimburse Client for all expenses (including attorney’s fees) as incurred by Client in connection with any such action or claim, except to the extent any such claim is finally determined to have resulted from gross negligence or intentional misconduct of Client.

7.3   Client shall indemnify and hold harmless Provider and its officers, contractors and employees (“Personnel”) from and against any loss, claim, damage or liabilities (or actions in respect thereof that may be asserted by any third party) that may result from any third party claims arising out of or relating to Client’s misuse of the services or any unauthorized use by the Client of any deliverables and shall reimburse Provider for all expenses (including attorney’s fees) as incurred by Provider in connection with any such action or claim, except to the extent any such claim is finally determined to have resulted from gross negligence or intentional misconduct of Provider.

7.4   If Client promptly notifies Provider in writing of a third party claim against Client that any item of Provider Software infringes a patent, copyright, trade secret or other intellectual property rights of such third party, Provider shall defend such claim at its expense and shall pay any costs or damages that may be finally awarded against Client.  The provider shall not be required to indemnify Client if the claim of infringement is caused by (1) Client’s misuse or modification of such Provider Software item; OR (2) Client’s use of such Provider Software in combination with any product or information not owned or developed by Provider. If any such Provider Software is, or in Provider’s opinion is likely to be, held to constitute an infringement, Provider shall at its expense and option either (a) procure the right for Client to continue using it, (b) replace it with a non-infringing equivalent, (c) modify it to make it non-infringing or (d) accept return of the Provider Software and refund to Client the fees paid for such Services less a reasonable amount for Client’s use of the Provider up to the time of return.  The foregoing remedies constitute Client’s sole and exclusive remedies and Provider's entire liability with respect to infringement

8.       General Terms.

8.1   Independent Relationship.  The parties to this Agreement are separate independent entities and nothing in this agreement shall be construed to form a joint venture, or employer/employee relationship.

8.2   Assignment. Neither party may assign this Agreement or any rights or obligations hereunder whether by operation of contract, law or otherwise except with written consent of Provider, which shall not unreasonably be withheld. Notwithstanding the foregoing, either party may assign this Agreement with notice to the other party, in the event of an acquisition, merger, or other transfer of substantially all of its assets.

8.3   Publicity. With Client’s prior written consent and approval, Provider may use Client’s name in promoting Provider’s services as a part of Provider’s website, marketing material.

8.4   Governing Law. This Agreement and the rights and obligations of the parties under it are governed by and interpreted in accordance with the laws of the State of Washington. At the option of the Provider, venue for any action with respect to this Agreement shall lie in King County in the State of Washington, and Client hereby submits to the venue and jurisdiction of the Superior Court of King County.  Client’s obligations under this Agreement supplement and do not supersede the obligations imposed on Client by the laws of the state of Washington and the United States of America, including without limitation, obligations imposed by the Washington Uniform Trade Secrets Act.

8.5   Dispute Resolution. Any and all claims, disputes, controversies, or disagreements of any kind whatsoever arising out of or in connection with this Agreement (“claims“) between Provider and Client involving the construction or application of any of the terms, provisions or conditions of this Agreement shall, on the written request of either party served on the other, be submitted to arbitration, and such arbitration shall comply with and be governed by the Commercial Arbitration Rules of the American Arbitration Association then existing, and shall be conducted in King County in the State of Washington. Notwithstanding this agreement to arbitrate, Client acknowledges and agrees that the Provider shall have the right to seek through a judicial process, preliminary injunctive relief to preserve the status quo or prevent irreparable injury before the matter can be heard in arbitration

8.6   Entire Agreement. This Agreement (a) represents the entire agreement between the Parties relating to the subject matter of this Agreement, (b) supersedes and terminates all prior purchase orders, agreements, understandings, representations, and warranties applicable to the subject matter of this Agreement, and (c) may only be amended by mutual written agreement.

8.7   Notices. All notices and requests in connection with this Agreement will be given or made upon the respective parties in writing. If faxed, the notice will be deemed given as of the business day following the day the notice is faxed, provided a hard copy acknowledgment of successful faxed notice transmission is retained. Notice may also be given by mail, postage prepaid, certified or registered with return receipt requested, e-mail or personal delivery. If mailed, e-mailed or delivered, notice will be deemed to be given on the business day following the day it is received by the recipient.

8.8   Severability. If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable for any reason, then the remainder of this Agreement shall nevertheless remain in full force and effect.

8.9   Survival. The terms of sections 2, 3, 6, and 7 shall survive the term of this Agreement.

 

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