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Terms and Conditions
This SaaS Agreement (“Agreement”) is entered into as of the last date of signature by a party hereto (the “Effective Date”) between Unioncrate Inc. with a place of business at 389 5th Ave, Suite 401 New York, NY 10016 (“Company”), and the Customer listed above (“Customer”). This Agreement includes and incorporates the above Order Form, as well as the attached Terms and Conditions and contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
Terms and Conditions SaaS Service and Support
Subject to the terms of this Agreement, Company shall provide to Customer the Services described in the pricing breakdown [in accordance with the Service Level Terms attached hereto as Pricing Breakdown ] and in accordance with the service level agreement attached hereto as Exhibit A. Customer is permitted to allow its consultants and independent contractors to access and use the Services for Customer’s business purposes, and Customer will responsible for any breach of this Agreement that is caused by such consultants or independent contractors. For the avoidance of doubt, Customer has a perpetual right to use, and to share with its Representatives (as defined below), all reports, forecasts and predictions generated by the Services for Customer during the Term (“Customer Specific Reports”) and, notwithstanding any other provision of this Agreement, Company may not disclose any Customer Specific Report to any third party either during or after the Term. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit B.
1. Restrictions and Responsibilities
a . Customer will not, directly or indirectly: reverse engineer, decompile, disassemble 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 Company provided data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement) , non-sublicensable license to use such Software during the Term only in connection with the Services. Notwithstanding the foregoing, Customer is permitted to allow its consultants and independent contractors to use the Software for Customer’s business purposes, and Customer will be responsible for any breach of this Agreement that is caused by such consultants or independent contractors.”
b. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
c. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2. Restrictions and Responsibilities
a. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes nonpublic information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services including all data input or otherwise uploaded by Customer into the Services and all derivations and compilations of such data (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or, in the case of Customer, in connection with its use of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information; except that, to the extent that any Proprietary Information of Company is incorporated in any Customer Specific Reports, Customer may disclose the Customer Specific Reports to its auditors, investors and service providers (collectively, “Representatives”) with a “need to know” who are informed of the confidential nature of such information and are bound by confidentiality obligations to Customer that are no less restrictive than those set forth in this Section 2.a. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the expiration or termination of this Agreement or any information that the Receiving Party can document (a) is or becomes generally available to the public through no fault of the Receiving Party, or (b) was in its possession or known by it, without obligation of confidentiality prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
b. Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, data enhancements, forecasts due to data enhancements (excluding raw Customer Data) or modifications thereto (excluding raw customer data), (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
c. [Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom). Company may not analyze or use any Customer Data that does not constitute Anonymous Aggregated Data for any purpose except to provide the Services to Customer in accordance with this Agreement. Company will be free (during and after the term hereof) to (i) use the Anonymous Aggregated data and enhancements derived from such data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose the Anonymous Aggregated data in connection with its business. As used herein, the term “Anonymous Aggregated Data” means: anonymous data and information derived from Customer Data that is aggregated with similar anonymous data and information derived from all of Company’s other customers receiving the Services, so long as it is not possible to trace or deduce that any of such information relates to the business, products or customers of Customer or consumers of Customer’s products. No rights or licenses are granted except as expressly set forth herein. Company has the right to use Customer’s logo on its own website, marketing and sales materials; provided, however, that Customer may revoke such permission at any time upon notice to Company.
3. Payment of Fees
Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Applicable taxes and payment processing fees are not included in this order from and is billed accordingly at the time of invoice. If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Free months begin upon kick-off meeting and all inquiries should be directed to Company’s customer support department.
4. Term and Termination
a. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed without first year discount for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
b. During the first two months’ following the signature date, either party may terminate this Agreement upon thirty (30) days’ notice with cause. In addition, (i) either party may terminate this Agreement upon thirty (30) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement and does not cure such material breach within thirty (30) days of receipt of notice from the non-breaching party that describes the material breach in reasonable detail. Customer will pay in full for the Services for the full term of the Agreement and (ii) Customer may terminate this Agreement upon written notice to Company if: (1) a Service described in the Pricing Breakdown fails to meet the Availability Standard (as defined on Exhibit A hereto) three times in any rolling twelve month period; or (2) there is a material, persistent degradation of a Service described in the Pricing Breakdown, or a persistent failure of material feature(s) or functionality of a Service to perform properly (in each case, that is not caused by the Equipment and that is within Company’s reasonable control) and such circumstance is not completely resolved within thirty (30) days of Customer’s notice to Company of same. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days (“Retrieval Period”), but thereafter: Company shall delete,or cause to be deleted, all Customer Data in the possession, or under the control, of Company or any of its subcontractors within thirty (30) days of the expiration of the Retrieval Period. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnification, and limitations of liability. In the event that the Customer goes through an acquisition, this Agreement shall remain in effect (unless terminated in accordance with this Agreement) and payments will still be due for the entire duration of the Agreement.
c. If the Customer terminates any of the Company’s products (Operate or Planning) and there are existing EDI connections at the pricing of $1 per connection per customer per month, it will no longer be valid. The pricing will then move to a normal EDI connection pricing structure as follows: 1) Monthly Fee 2) Document Fees 3) 1-Time Costs for New/Migrated EDI Connections 4) 1-Time Testing Fee. A quote will need to be formally requested and will vary based on the number of existing EDI connections as well as any new ones requested.
d. If the Customer terminates any of the Company’s products (Operate or Planning) and there are existing integrations via API, SFTP and/or FTP in place, it will no longer be free. A quote will need to be requested at the time of the termination and will consist of 1) Monthly Fee Based on Number of Existing Supplier Integrations 2) Document Fees Based on Number of Transactions Per Month 3) Customer Work Needed to Maintain Existing Connections 4) New Connections.
5. Warranty and Disclaimer
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. 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. HOWEVER, 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 USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION 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.
Neither party may assign or otherwise transfer (by operation of law or otherwise) this Agreement, or any of a party’s rights or obligations under this Agreement, to any third party without the other party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned; provided, however, that either party may assign or otherwise transfer its entire interest in this Agreement, to a third party in connection with a merger, reorganization, a sale of all or substantially all of its assets, or a change of control; in each case, so long as the assignee assumes all obligations of the assignor under this Agreement (if not automatically assumed by operation of law). Any attempted assignment in violation of this Section will be void and without effect. This Agreement shall be binding on and inure to the benefit of the parties and their permitted assigns
All notices required under this Agreement shall be in writing and must be given via (a) personal delivery, or (b) prepaid overnight courier or U.S. mail, with tracking of delivery or rejection. Notices must be sent to the following address(es) for the applicable party set forth below its signature block, except that either party may change its notice information by providing notice to the other in accordance with this Section 8. Any notice sent by a party shall be deemed to have been duly given to the other party when (i) personally delivered, or (ii) actually delivered or rejected, when sent by prepaid overnight courier or U.S. mail, with tracking of delivery or rejection.
The interpretation, validity, and enforcement of this Agreement, and all legal actions brought under or in connection with the subject matter of this Agreement, shall be governed by the laws of New York State (other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than those of New York State). This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and therein and supersedes all prior or contemporaneous understandings, proposals, agreements, or communications, both written and oral, with respect to such subject matter. This Agreement may not be modified or amended, except in writing executed by both parties. No waiver of any rights of a party or obligations of the other party shall be effective unless consented to in a writing signed by an authorized representative of the party against which enforcement is sought. No failure to exercise, or delay in the exercise of, a party’s rights under this Agreement will constitute a waiver of such rights. The parties are independent contractors and this Agreement shall not be construed to create any other relationship between the parties, as principal and agent, joint venturers or otherwise. In the event that any part of this Agreement shall be held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from this Agreement and the remaining portions of this Agreement shall be valid and enforceable. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted. All section headings are for convenience only and shall not affect the interpretation or construction of this Agreement, and the words “including,” “include” and any derivation thereof mean inclusion without limitation. There are no third party beneficiaries of this Agreement. All rights and remedies provided in this Agreement are cumulative and not exclusive. This Agreement may be executed in counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument. Unioncrate will not make any use of Client’s name, trademarks or logo or any variations thereof, alone or with any other word or words, without the prior written consent of Client, which consent will not be unreasonably withheld. Despite this, Client agrees that Unioncrate may include Client’s name and logo in customer lists or related marketing and promotional material for the purpose of identifying users of Unioncrate Services.
Exhibit A- Service Level Agreement
I. Availability Standard.
During the Term, Company shall make each Service available to Customer twenty-four hours per day, seven days per week, 99.5% of the time, calculated on a monthly basis (“Availability Standard”); excluding the following (“Excluded Downtime”): (i) downtime caused by any failure, interruption, outage, or other problem with the Equipment; (ii) Customer will be notified one month ahead of time as to any downtime that will occur due to scheduled maintenance and any scheduled downtime will happen after business hours anytime between 12am-6am EST (“Permitted Scheduled Maintenance”). Whether or not the Availability Standard was met for a particular month shall be determined based on whether the Actual Availability for such month equaled or exceeded the Availability Standard. As used herein, the following terms shall have the meaning set forth below: “Actual Availability” means (Actual Uptime divided by the total number of minutes in the month) multiplied by 100. “Actual Uptime” means the total number of minutes in a month minus Total Downtime that does not constitute Excluded Downtime. “Downtime Duration” means, for each incidence of downtime, the total number of minutes of downtime. “Total Downtime” means the sum of the Downtime Duration for all downtime incidents in the applicable month. For example, assume that, in calculating the Actual Availability in a particular month: there are 30 days in the month. there are 80 minutes of Total Downtime, including 30 minutes of Permitted Scheduled Maintenance. In such example, the Actual Uptime would be 43150 minute and actual Availability would be 99.88% Consequently, the Availability Standard was met for such month.
II. Monthly Reports
Within five business days of each calendar month end (“Report Date”), Company shall provide Customer with a report, in a format and containing such data points as have been pre-approved by Customer, setting forth: (i) the Actual Uptime achieved during the just concluded calendar month; (ii) the number of incidents of downtime during the just concluded calendar month; (iii) the date on which each such downtime incident occurred; (iv) the length of each downtime incident (including incident start and end times); (v) the total downtime due to Permitted Scheduled Maintenance during the just concluded calendar month; and (vi) the total downtime constituting Excluded Downtime that is not Permitted Scheduled Maintenance during the just concluded calendar month and a description of the cause of such downtime.]
Company will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 6:00 pm Eastern Standard time, with the exclusion of Federal Holidays (“Support Hours”). Customer may initiate a help desk ticket during Support Hours by emailing [support@Unioncrate.com] or using our chat. Company will use commercially reasonable efforts to (i) respond to all Helpdesk tickets within one (30) minutes, and (ii) correct all material failures of a Service to conform with the end user documentation therefor where the root cause of such failure is not attributable to the Equipment and is within Company’s reasonable control.
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