Software As A Service Agreement

Software as a Service Agreement

This Software as a Service Agreement is a contract between you (the "Customer") and us, [COMPANY NAME] (the "Company"), for your use of [SOFTWARE SERVICE NAME] (the "Service").

Please read this agreement carefully. It contains important terms that affect you and your use of the Service. By using the Service, you agree to be bound by the terms of this agreement, including the disclaimers. If you do not agree to these terms, do not use the Service.

If the parties have a fully executed agreement that covers the Service that agreement supersedes this agreement.

Software as a Service Agreement

This Software as a Service Agreement is made on [AGREEMENT DATE] (the "Effective Date") between [PARTY A NAME], [whose principal place of residence is at / a [CORPORATE JURISDICTION] corporation with its principal place of business at [PARTY A ADDRESS]] (the "[PARTY A ABBREVIATION]") and [PARTY B NAME], [whose principal place of residence is at / a [CORPORATE JURISDICTION] corporation with its principal place of business at] [PARTY B ADDRESS]] (the "[PARTY B ABBREVIATION]").

(The capitalized terms used in this agreement, in addition to those above, are defined in section [DEFINITIONS].)

Grant of License to Access and Use Service. [PARTY A] hereby grants to [PARTY B], including to all [PARTY B]'s Authorized Users, a non-exclusive, non-sublicensable, non-assignable, royalty-free, and worldwide license to access and use the [DESCRIPTION OF SAAS SERVICE] (the “Service”) solely for [PARTY B]'s internal business operations (the "[DELIVERABLE]"), according to [PARTY A]'s terms and policies listed at [URL].

Royalties. In exchange for the [DELIVERABLE][PARTY B] shall pay [PARTY A] the Royalties Fees, and down payment, according to section [PAYMENT OF ROYALTIES].

Subscription Fees. [PARTY B] shall pay [PARTY A] a monthly subscription fee of $[SUBSCRIPTION FEE AMOUNT] (the "Subscription Fee") for the [DELIVERABLE] provided under this agreement.

License Fees. [PARTY B] shall pay [PARTY A] a license fee of $[LICENSE FEE] (the "License Fee") for the [DELIVERABLE].

Subscription Fee[PARTY B] shall pay the Subscription Fee to [PARTY A]

due on [DATE] of each month,

in immediately available funds, and

to the account [PARTY A] lists immediately below:

Account Number:

Routing Number:

Taxes. [PARTY B] shall pay all Taxes applicable to payments between the parties under this agreement. 

Taxes. Each party shall pay the Taxes arising from the party's performance of its obligations and from compensation paid to the party. 

Taxes. [PARTY A] shall pay all Taxes applicable to payments between the parties under this agreement.

Late Payments

Right to Suspend. If [PARTY B] fails to make payments when due [three] times over any [six]-month period, [PARTY A] may suspend the [DELIVERABLE] until [PARTY B] pays all outstanding fees plus a $[REINSTATEMENT FEE] reinstatement fee.

Interest on Late Payments. Any amount not paid when due will bear interest from the due date until paid at a rate equal to [1]% per month ([12.68]% annually) or the maximum allowed by Law, whichever is less.

Late Payments

Right to Suspend. If [PARTY B] fails to make payments when due [three] times over any [six]-month period, [PARTY A] may suspend the [DELIVERABLE] until [PARTY B] pays all outstanding fees.

Interest on Late Payments. Any amount not paid when due will bear interest from the due date until paid at a rate equal to [1]% per month ([12.68]% annually) or the maximum allowed by Law, whichever is less.

Interest on Late Payments. Any amount not paid when due will bear interest from the due date until paid at a rate equal to [1]% per month ([12.68]% annually) or the maximum allowed by Law, whichever is less.

Training and Support Services

Training[PARTY A] shall, at [PARTY A]'s expense, provide [PARTY B]'s employees with the initial training services necessary and desirable to use the Services and any related software, as further described in the [ATTACHMENT], attached to this agreement, at [PARTY A]'s offices and on days and times the parties agree to in writing.

Support Services

Initial Support. For the [12] month period beginning on the Effective Date, and at [PARTY A]'s own expense, [PARTY A] shall provide [PARTY B] with 

telephone or electronic support during [PARTY A]'s normal business hours in order to help [PARTY B] locate and correct problems with the Service and any related software, and

internet-based support system generally available seven days a week, twenty-four hours a day. 

Renewed Support. After the initial [12] month support period, [PARTY B] may elect to renew [PARTY A]'s support services under this paragraph [SUPPORT] for additional [12] month periods, at [PARTY A]'s then-current service rates.

Support Services

Initial Support. For the [12] month period beginning on the Effective Date, and at [PARTY A]'s own expense, [PARTY A] shall provide [PARTY B] with 

telephone or electronic support during [PARTY A]'s normal business hours in order to help [PARTY B] locate and correct problems with the Service and any related software, and

internet-based support system generally available seven days a week, twenty-four hours a day. 

Renewed Support. After the initial [12] month support period, [PARTY B] may elect to renew [PARTY A]'s support services under this paragraph [SUPPORT] for additional [12] month periods, at [PARTY A]'s then-current service rates.

Training and Support Services

Training[PARTY A] shall, at [PARTY A]'s expense, provide [PARTY B]'s employees with the initial training services necessary and desirable to use the Services and any related software, as further described in the [ATTACHMENT], attached to this agreement, at [PARTY B]'s offices and on days and times the parties agree to in writing.

Support Services

Initial Support. For the [12] month period beginning on the Effective Date, and at [PARTY A]'s own expense, [PARTY A] shall provide [PARTY B] with 

telephone or electronic support during [PARTY A]'s normal business hours in order to help [PARTY B] locate and correct problems with the Service and any related software, and

internet-based support system generally available seven days a week, twenty-four hours a day. 

Renewed Support. After the initial [12] month support period, [PARTY B] may elect to renew [PARTY A]'s support services under this paragraph [SUPPORT] for additional [12] month periods, at [PARTY A]'s then-current service rates.

Service Levels. [PARTY A] shall provide the Service to [PARTY B] with an availability of at least [98]% during each calendar month, according to the Service Level Agreement, attached to this agreement.

Service Levels.

Applicable Levels[PARTY A] shall provide the Service to [PARTY B] with a System Availability of at least [98]% during each calendar month.

System Maintenance. [PARTY A] may

take the Service offline for scheduled maintenances that it provides [PARTY B] the schedule for in writing (though this scheduled maintenance time will not count as System Availability), and

change its schedule of maintenances on [one] month written notice to [PARTY B].

System Availability Definition

Percentage of Minutes per Month. "System Availability" means the percentage of minutes in a month that the key components of the Service are operational.

Not Included in "System Availability. "System Availability" will not include any minutes of downtime resulting from

scheduled maintenance,

events of force majeure,

malicious attacks on the system,

issues associated with [PARTY B]'s computing devices, local area networks or internet service provider connections, or

[PARTY A]'s inability to deliver services because of [PARTY B]'s acts or omissions.

Service Levels

Applicable Service Levels[PARTY A] shall provide the Service to [PARTY B] with a System Availability of at least [98]% during each calendar month.

System Maintenance. [PARTY A] may

take the Service offline for scheduled maintenances that it provides [PARTY B] the schedule for in writing (though this scheduled maintenance time will not count as System Availability), and

change its schedule of maintenances on [one] month written notice to [PARTY B].

Fee Credits

Eligibility for Fee Credits. Subject to paragraph [NOTICE REQUIRED] directly below, for each full percentage point that the availability of the Services does not meet the System Availability percent, [PARTY A] shall provide a [5]% fee credit [PARTY B] (each additional day a "Fee Credit"), up to a maximum of [30]% worth of Fee Credits any month, to be applied to the next Subscription Fee.

Notice Required. If [PARTY B] does not give [PARTY A] written notice that it is eligible for Fee Credits within [30] Business Days' after the end of a month it is eligible to receive Fee Credits for, [PARTY A] will not be required to provide Fee Credits for that month.

System Availability Definition

Percentage of Minutes per Month. "System Availability" means the percentage of minutes in a month that the key components of the Service are operational.

Not Included in "System Availability. "System Availability" will not include any minutes of downtime resulting from

scheduled maintenance,

events of force majeure,

malicious attacks on the system,

issues associated with [PARTY B]'s computing devices, local area networks or internet service provider connections, or

[PARTY A]'s inability to deliver services because of [PARTY B]'s acts or omissions.

Service Levels

Applicable Levels[PARTY A] shall provide the Service to [PARTY B] with a System Availability of at least [98]% during each calendar month.

System Maintenance. [PARTY A] may

take the Service offline for scheduled maintenances that it provides [PARTY B] the schedule for in writing (though this scheduled maintenance time will not count as System Availability), and

change its schedule of maintenances on [one] month written notice to [PARTY B].

Service Credits

Eligibility for Service Credits. Subject to paragraph [NOTICE REQUIRED] directly below, for each full percentage point that the availability of the Services does not meet the System Availability percent, [PARTY A] shall provide one additional days' service to [PARTY B] (each additional day a "Service Credit"), up to a maximum of [10] Service Credits, to be added to the end of the Term and at no additional charge to [PARTY B].

Notice Required. If [PARTY B] does not give [PARTY A] written notice that it is eligible for Service Credits within [30] Business Days' after the end of a month it is eligible to receive Service Credits for, [PARTY A] will not be required to provide Service Credits for that month.

System Availability Definition

Percentage of Minutes per Month. "System Availability" means the percentage of minutes in a month the key components of the Service are operational.

Not Included in "System Availability. "System Availability" will not include any minutes of downtime resulting from

scheduled maintenance,

events of force majeure,

malicious attacks on the system,

issues associated with [PARTY B]'s computing devices, local area networks or internet service provider connections, or

[PARTY A]'s inability to deliver services because of [PARTY B]'s acts or omissions.

Data Privacy. [PARTY A] may collect, use and process [PARTY B] data only according to [PARTY A]'s Privacy Policy, available at [URL].

Back Up Data. On [PARTY B]'s request and payment of $[50] per copy, [PARTY A] shall deliver to [PARTY B] a full backup of [PARTY B]'s Data, in a format the parties agree on in writing.

Statistical Information. [PARTY A] may anonymously compile statistical information related to the performance of the Service for purposes of improving the Service service, but only if such information does not identify the data as [PARTY B]'s or otherwise include [PARTY B]'s name.

Publicity

Logos. [PARTY A] may include [PARTY B]'s trademarks, name, and logos in its customer lists, press releases, marketing materials, and on its website.

Press Releases. Upon signing this agreement, [PARTY A] may issue a high-level press release announcing the relationship and the manner in which [PARTY B] will use the Service. 

Removal of Logos. [PARTY B] may require [PARTY A] to withdraw any use of [PARTY B]'s trademarks, name, and logos if [PARTY B] reasonably considers that [PARTY A]'s use of the trademark, name, and logo is derogatory, defamatory, or detrimental to [PARTY B] or in any way damages [PARTY B]'s business or reputation.

User Obligations

Hardware Obligations[PARTY B] shall be responsible for

obtaining and maintaining all computer hardware, software, and communications equipment needed to internally access the Service, and

paying all third party access charges incurred while using the Service.

Anti-Virus Obligations[PARTY B] shall be responsible for implementing, maintaining, and updating all necessary and proper procedures and software for safeguarding against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties (collectively "Viruses").

[PARTY B]'s Use of Services[PARTY B] shall

abide by all local and international Laws and regulations applicable to its use of the Service,

use the Service only for legal purposes, and

comply with all regulations, policies and procedures of networks connected to the SaaS.

Restricted Uses[PARTY B] will not

upload or distribute of any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Service,

modify, disassemble, decompile or reverse engineer the Service,

probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Service,

take any action that imposes an unreasonably or disproportionately large load on the sites, servers, or networks connected to the Service, 

copy or reproduce the Service,

access or use any other clients' or their users' data through the Service,

maliciously reduce or impair the accessibility of the Service,

use the service to post, promote, or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, hateful, or otherwise objectionable material, or 

transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability.

Confidentiality

Confidentiality Obligations. During the Term and for [RESTRICTED PERIOD YEARS] years after the Term (the "Restricted Period"), [PARTY B] shall hold in confidence all Confidential Information [PARTY A] discloses to it under this agreement.

Use Solely for Purpose. [PARTY B] may only use Confidential Information according to the terms of this agreement[ and solely for the Purpose].

Non-Disclosure[PARTY B] may not disclose Confidential Information, [the existence of this agreement, the Transaction, or the Purpose], except to the extent allowed under paragraphs [PERMITTED DISCLOSURE] and [REQUIRED DISCLOSURE].

Permitted Disclosure. [PARTY B] may disclose Confidential Information to its Representatives

if and to the extent that [PARTY A] consents in writing to such disclosure, or

to the [PARTY B]'s officers, directors, employees, Affiliates, or Representatives who

need to know the Confidential Information in connection with the Purpose,

have been informed of the confidentiality obligations of this agreement, and 

agree comply with the confidentiality obligations of this agreement.

Required Disclosure. [PARTY B] may disclose Confidential Information if it is required to do so by Law but only if [PARTY B]

gives [PARTY A] Notice to allow it a reasonable opportunity to either seek a protective order or other appropriate remedy or waive the recipient's compliance with the confidentiality obligations,

reasonably cooperates with [PARTY A] in its reasonable efforts to obtain a protective order or other appropriate remedy,

discloses only that portion of the Confidential Information that, having consulted with its counsel, it is legally required to disclose, and

uses reasonable efforts to obtain reliable written assurance from the third party that the Confidential Information will be kept confidential.

Standard of Care. In protecting the Confidential Information, [PARTY B] shall exercise at least the same degree of care as it uses with its own Confidential Information, but in no event less than reasonable care.

Burden of Proof. [PARTY B] will have the burden of proof relating to all exceptions to the definition of Confidential Information.

No Copies. [PARTY B] may not copy, record, or otherwise reproduce any Confidential Information.

No Modification of Confidential Information. [PARTY B] will not copy, decompile, modify, reverse engineer, or create derivative works out of any Confidential Information without [PARTY A]'s written consent.

Confidentiality

Confidentiality Obligations. During the Term and for [RESTRICTED PERIOD YEARS] years after the Term (the "Restricted Period"), each party (as a receiving party) shall hold in confidence all Confidential Information the other party (as a disclosing party) discloses to it under this agreement.

Use Solely for Purpose. A receiving party may only use Confidential Information according to the terms of this agreement[ and solely for the Purpose].

Non-DisclosureA receiving party may not disclose Confidential Information, [the existence of this agreement, the Transaction, or the Purpose] to any third party, except to the extent allowed under paragraphs [PERMITTED DISCLOSURE] and [REQUIRED DISCLOSURE].

Permitted Disclosure. A receiving party may disclose Confidential Information to its Representatives

if and to the extent that the disclosing party consents in writing to such disclosure, or

to the receiving party's officers, directors, employees, Affiliates, or Representatives who

need to know the Confidential Information in connection with the Purpose,

have been informed of the confidentiality obligations of this agreement, and 

agree comply with the confidentiality obligations of this agreement.

Required Disclosure. The receiving party may disclose Confidential Information if it is required to do so by Law but only if the receiving party

gives the disclosing party Notice to allow it a reasonable opportunity to either seek a protective order or other appropriate remedy or waive the recipient's compliance with the confidentiality obligations,

reasonably cooperates with the disclosing party in its reasonable efforts to obtain a protective order or other appropriate remedy,

discloses only that portion of the Confidential Information that, having consulted with its counsel, it is legally required to disclose, and

uses reasonable efforts to obtain reliable written assurance from the third party that the Confidential Information will be kept confidential.

Standard of Care. In protecting the Confidential Information, the receiving party shall exercise at least the same degree of care as it uses with its own Confidential Information, but in no event less than reasonable care.

Burden of Proof. The receiving party will have the burden of proof relating to all exceptions to the definition of Confidential Information.

No Copies. A receiving party may not copy, record, or otherwise reproduce any Confidential Information.

No Modification of Confidential Information. The receiving party will not copy, decompile, modify, reverse engineer, or create derivative works out of any Confidential Information without the disclosing party's written consent.

Confidentiality Obligations. The parties shall continue to be bound by the terms of the Non-Disclosure Agreement between the parties, dated [DATE] and attached to this agreement.

Non-Disclosure of Agreement. Neither party will disclose the terms or existence of this agreement to any third party, unless the other party gives written consent to the disclosure.

Confidentiality

Confidentiality Obligations. During the Term and for [RESTRICTED PERIOD YEARS] years after the Term (the "Restricted Period"), each party (as a receiving party) shall hold in confidence all Confidential Information the other party (as a disclosing party) discloses to it under this agreement.

Use Solely for Purpose. A receiving party may only use Confidential Information according to the terms of this agreement and solely for the Purpose.

Non-DisclosureA receiving party may not disclose Confidential Information, [the existence of this agreement, the Transaction, or the Purpose] to any third party, except to the extent

permitted by this agreement

the disclosing party consents to in writing, or

required by Law.

Notice. A receiving party shall notify the disclosing party if it

is required by Law to disclose any Confidential Information, or

learns of any unauthorized disclosure of Confidential Information.

Confidentiality

Confidentiality Obligations. During the Term and for [RESTRICTED PERIOD YEARS] years after the Term (the "Restricted Period"), [PARTY B] shall hold in confidence all Confidential Information [PARTY A] discloses to it under this agreement.

Use Solely for Purpose. [PARTY B] may only use Confidential Information according to the terms of this agreement and solely for the Purpose

Non-Disclosure[PARTY B] may not disclose Confidential Information, [the existence of this agreement, the Transaction, or the Purpose] to any third party, except to the extent

permitted by this agreement,

[PARTY A] consents to in writing, or

required by Law.

Notice. [PARTY B] shall notify [PARTY A] if it

is required by Law to disclose any Confidential Information, or

learns of any unauthorized disclosure of Confidential Information.

No Warranty

"As-Is". Unless otherwise listed in this agreement, the Service is provided "as is," with all faults, defects, bugs, and errors.

No Warranty. Unless otherwise listed in this agreement,

[PARTY A] does not make any warranty regarding the Service, which includes that 

[PARTY A] disclaims to the [fullest] extent authorized by Law any and all [other] warranties, whether express or implied, including any implied warranties of [title, non-infringement, quiet enjoyment, integration,] merchantability or fitness for a particular purpose.

Export Compliance

No Representation by [PARTY A][PARTY A] makes no representation that the Service is appropriate or available for use outside of the United States.

[PARTY B] Status[PARTY B] represents and that it is not located in, under the control of, or a national or resident of any country to which the United States has embargoed the import or export of goods, on the United States Treasury Department's List of Specially Designated Nationals or United States Commerce Department's Table of Deny Orders.

Term. This agreement begins on [the Effective Date / [DATE, MONTH]], and will continue until terminated (the "Term").

Term. This agreement begins on [the Effective Date] and will continue until [CONDITION / EVENT / FULFILLMENT OF ORDER / COMPLETION OF SERVICES], unless terminated earlier (the "Term").

Term

Initial Term. The initial term of this agreement begins on [the Effective Date] and will continue for [TERM YEARS] years, unless terminated earlier (the "Initial Term").

Renewal Term by Notice. [PARTY B] may renew this agreement for successive renewal terms of [RENEWAL YEARS] length ("Renewal Terms"), unless terminated earlier, by giving [PARTY A] notice of the intent to renew this agreement, at least [RENEWAL NOTICE DAYS] Business Days before the end of the Current Term.

Term Definition. "Term" means either the Initial Term or the then-current Renewal Term.

Term. This agreement will commence on [the Effective Date / [DATE, MONTH]], and will continue for [TERM MONTHS] months unless terminated earlier (the "Term").

Term

Initial Term. The initial term of this agreement will begin on [the Effective Date] and continue for [TERM MONTHS] months, unless terminated earlier (the "Initial Term").

Automatic RenewalSubject to paragraph [ELECTION NOT TO RENEW], this agreement will automatically renew for a renewal term of [RENEWAL TERM MONTHS] months, unless terminated earlier ("Renewal Term").

Election Not to Renew. Either party may elect not to renew this agreement, by providing notice to the other party at least [NON-RENEWAL NOTICE PERIOD] Business Days' before the end of the Term.

Term Definition. "Term" means either the Initial Term or the then-current Renewal Term.

Representations

Mutual Representations

Existence. The parties are corporations incorporated and existing under the laws of the jurisdictions of their respective incorporation.

Authority and Capacity. The parties have the authority and capacity to enter into this agreement.

Execution and Delivery. The parties have duly executed and delivered this agreement.

Enforceability. This agreement constitutes a legal, valid, and binding obligation, enforceable against the parties according to its terms.

No Conflicts. Neither party is under any restriction or obligation that the party could reasonably expect might affect the party's performance of its obligations under this agreement.

No Breach. Neither party’s execution, delivery, or performance of its obligations under this agreement will breach or result in a default under

its articles, bylaws, or any unanimous shareholders agreement,

any Law to which it is subject,

any judgment, Order, or decree of any Governmental Authority to which it is subject, or

any agreement to which it is a party or by which it is bound.

Permits, Consents, and Other Authorizations. Each party holds all Permits and other authorizations necessary to

own, lease, and operate its properties, and

conduct its business as it is now carried on.

No Disputes or Proceedings. [Except as disclosed in the parties respective Disclosure Schedules] There are no Legal Proceedings pending, threatened, or foreseeable against either party, which would affect that party’s ability to complete its obligations under this agreement.

No Bankruptcy. Neither party has taken or authorized any proceedings related to that party’s bankruptcy, insolvency, liquidation, dissolution, or winding up.

[PARTY A]'s Representations

IP Disclosure Schedule. [PARTY A]'s Disclosure Schedule lists any exceptions to its representations.

Ownership. [Except as disclosed in [PARTY A]'s Disclosure Schedule] [PARTY A] is the exclusive legal owner of the Service, including all Intellectual Property included in the Service and granted under the [DELIVERABLE].

Status of Licensed Intellectual Property. [Except as disclosed in [PARTY A]'s Disclosure Schedule][PARTY A] has properly registered and maintained all Intellectual Property included in the Service and granted under the [DELIVERABLE] and paid all applicable maintenance and renewal fees.

No Conflicting Grant. [Except as disclosed in [PARTY A]'s Disclosure Schedule][PARTY A] has not granted and is not obligated to grant any license to a third party that would conflict with the [DELIVERABLE].

No Infringement. [Except as disclosed in [PARTY A]'s Disclosure Schedule]The Service does not infringe the Intellectual Property rights or other proprietary rights of any third party.

No Third Party infringement. [Except as disclosed in [PARTY A]'s Disclosure Schedule] To [PARTY A]'s Knowledge, no third party is infringing the Service.

Ownership of Intellectual Property[PARTY A] will retain all interest in and to the Services, including all documentation, modifications, improvements, upgrades, derivative words, and all other Intellectual Property rights in connection with the Service, including [PARTY A]'s name, logos. and trademarks reproduced through the Service.

Termination

Termination on Notice. Either party may terminate this agreement for any reason on [TERMINATION NOTICE BUSINESS DAYS] business days’ notice to the other party.

Termination for Material Breach. Each party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if

the other party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and

the failure, inaccuracy, or breach continues for a period of [BREACH CONTINUATION DAYS] Business Days' after the injured party delivers notice to the breaching party reasonably detailing the breach.

Termination for Failure to Pay. [PARTY A] may terminate this agreement with immediate effect by delivering notice of the termination to [PARTY B] if [PARTY B] fails to pay the monthly Subscription Fee on time [three] times over any 12 month period. 

 Effect of Termination

Refund Amounts. [PARTY A] shall immediately refund to [PARTY B] any prepaid Subscription Fees covering the remainder of the term of all subscriptions after the effective date of termination.

Pay Outstanding Amounts[PARTY B] shall immediately pay to [PARTY A] all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination.

Discontinuance of Use. [PARTY B] shall cease all use of the Service upon the effective date of the termination.

Recovery of Data. [PARTY B] will have [30] days from the date of termination to retrieve any of data that [PARTY B] wishes to keep.

Indemnification

Indemnification by [PARTY A].

Indemnification for Infringement Claims. Subject to paragraph [EXCLUSIONS], [PARTY A] (as an indemnifying party) shall indemnify [PARTYB] (as an indemnified party) against all losses and expenses arising out of any proceeding

brought by either a third party, and

arising out of a claim that the Services infringe the third party's Intellectual Property rights.

Qualifications for Indemnification. [PARTY A] will be required indemnify [PARTY B] under paragraph [INDEMNIFICATION FOR INFRINGEMENT CLAIMS] only if

[PARTY B]'s use of the Services complies with this agreement and all documentation related to the Services,

the infringement was not caused by [PARTY B] modifying or altering the Services or documentation related to the Services, unless [PARTY A] consented to the modification or alteration in writing, and

the infringement was not caused by [PARTY B] combining the Services with products not supplied by [PARTY A], unless [PARTY A] consented to the combination in writing.

Mutual Indemnification. Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses arising out of any proceeding

brought by either a third party or an indemnified party, and

arising out of the indemnifying party's willful misconduct or gross negligence.

Notice and Failure to Notify

Notice Requirement. Before bringing a claim for indemnification, the indemnified party shall

notify the indemnifying party of the indemnifiable proceeding, and

deliver to the indemnifying party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.

Failure to Notify. If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party's failure.

Exclusive Remedy. The parties' right to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this section [INDEMNIFICATION].

 Limitation on Liability

Mutual Limit on Liability. Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this agreement.

Maximum Liability. [PARTY A]'s liability under this agreement will not exceed the fees paid by [PARTY B] under this agreement during the 12 months preceding the date upon which the related claim arose.

Definitions

"Authorized Users" means the list of Persons authorized to use the Services under this agreement, fully listed in the [ATTACHMENT], attached to this agreement.

"Business Day" means a day other than a Saturday, a Sunday, or any other day on which the principal banks located in New York, New York are not open for business.

"Confidential Information" has the same meaning in this agreement as the term has under the Non-Disclosure Agreement between the parties, dated [DATE], referenced in section [CONFIDENTIALITY OBLIGATIONS] and attached to this agreement.

"Data" means all of the data [PARTY B] creates with or uses with the Service, or otherwise related to [PARTY B]'s use of the Services.

"Disclosure Schedule" means the schedules delivered, before the execution of this agreement, by each party to the other party which list, among other things, items the disclosure of which is necessary or appropriate either in response to an express disclosure requirement contained in a provision of this agreement or as an exception to one or more of the representations or warranties made by the party, or to one or more of the covenants of the party. 

"Effective Date" is defined in the introduction to this agreement.

"Governmental Authority" means

(a) any federal, state, local, or foreign government, and any political subdivision of any of them,

(b) any agency or instrumentality of any such government or political subdivision,

(c) any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that its rules, regulations or orders have the force of law), and

(d) any arbitrator, court or tribunal of competent jurisdiction.

"Intellectual Property" means any and all of the following in any jurisdiction throughout the world

(a) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing,

(b) copyrights, including all applications and registrations related to the foregoing,

(c) trade secrets and confidential know-how,

(d) patents and patent applications,

(e) websites and internet domain name registrations, and

(f) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys' fees for past, present, and future infringement, and any other rights relating to any of the foregoing).

"Law" means

(a) any law (including the common law), statute, bylaw, rule, regulation, order, ordinance, treaty, decree, judgment, and

(b) any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any Governmental Authority having the force of law.

"Legal Proceeding" means any claim, investigation, hearing, legal action, or other legal, administrative, arbitral, or similar proceeding, whether civil or criminal (including any appeal or review of any of the foregoing).

"[License Grant]" is defined in section [GRANT OF ACCESS AND USE OF SERVICE].

"Order" means any decision, order, judgment, award, or similar order of any court of competent jurisdiction, arbitration panel, or Governmental Authority with jurisdiction over the subject matter, whether preliminary or final.

"Permits" means all material licenses, franchises, permits, certificates, approvals, and authorizations, from Governmental Authorities necessary for the ownership and operation of the party's business.

"Person" includes

(a) any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and

(b) any individual.

"Service" is defined in section [GRANT OF ACCESS AND USE OF SERVICE].

"Subscription Fee" is defined in section [SUBSCRIPTION FEES].

SELECT APPROPRIATE DEFINITION LOCATION] "System Availability" is defined in [section [SERVICE LEVELS] / the Service Levels Agreement, attached to this agreement as Exhibit A]. [

"Taxes" includes all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, value-added and all other taxes of any kind for which a party may have any liability imposed by any Governmental Authority, whether disputed or not, any related charges, interest or penalties imposed by any Governmental Authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise.

"Term" is defined in section [TERM].

"Viruses" is defined in section [USER OBLIGATIONS].

General Provisions

Entire Agreement. The parties intend that this agreement, together with all attachments, schedules, exhibits, and other documents that both are referenced in this agreement and refer to this agreement,

represent the final expression of the parties' intent and agreement between the parties relating to the subject matter of this agreement,

contain all the terms the parties agreed to relating to the subject matter, and

replace all the parties' previous discussions, understandings, and agreements relating to the subject matter.

Amendment. [PARTY A] may amend the terms and conditions of this agreement at any time by reasonable notice, including without limitation by posting revised terms on its website at the URL [URL].

Amendment. This agreement may be amended only by a written instrument executed by the party against whom the amendment is to be enforced.

Amendment. This agreement may be amended only by a written instrument executed by [TITLE OR POSITION OF AUTHORIZED INDIVIDUAL] of each party.

Amendment

Before the Effective Time. Before the Effective Time, this agreement may be amended by either the Parent Board of Directors or Company Board of Directors.

After the Effective Time.  After the Effective Time, this agreement may only be amended by the Parent Board of Directors or Company Board of Directors with the prior written approval by the Company Shareholders, if such approval is required by the [APPLICABLE STATUTE].

Method of Amendment. This agreement can be amended only by a written instrument signed on behalf of both parties. 

Amendment. This agreement may be amended only by written consent of the Company and Stockhoolders of at least [66%] of the outstanding shares of Common Stock. Any consent will only be effective in the specific instance and purpose for which it was given and shall not constitute continuing consent.

Amendment. This agreement can be amended only by a writing signed by both parties.

Assignment

[PARTY B] Requires [PARTY A]'s Consent[PARTY B] may not assign this agreement or any of its rights or obligations under this agreement without [PARTY A]'s written consent.

[PARTY A] May Give Notice to Assign[PARTY A] may assign this agreement or any of its rights or obligations under this agreement, by giving [PARTY B] notice.

Assignment. [PARTY B] may not assign this agreement or any of its rights or obligations under this agreement without [PARTY A]'s prior written consent. [PARTY A] may assign this agreement or any of its rights and obligations under this agreement, effective upon Notice to [PARTY B],

to any subsidiary or affiliate, or

in connection with any sale, transfer, or other disposition of all or substantially all of its business or assets but only if the assignee assumes all of [PARTY A]'s obligations.

Assignment. Neither party may assign this [agreement /plan] or any of their rights or obligations under this [agreement /plan] without the other party's written consent.

Assignment and Successors

Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the prior written consent of the other party.

Successors. This agreement benefits and binds the parties and their respective heirs, successors, and permitted assigns.

Notices

Form of Notice. All notices and other communications between the parties must be in writing.

Method of Notice. The parties shall give all notices and communications between the parties by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][ or (v) electronic mail] to the party's address specified in this agreement, or to the address that a party has notified to be that party's address for the purposes of this section.

Receipt of Notice. A notice given under this [agreement / plan] will be effective on

the other party's receipt of it, or

if mailed, on the earlier of the other party's receipt of it and the [fifth] Business Day after mailing it. 

Governing Law.

Applicable Law. This agreement will be governed by and construed in accordance with the substantive laws in force in:

the State of California, if a license to the Software is purchased when you are in the United States, Canada, or Mexico; or

Japan, if a license to the Software is purchased when you are in Japan, China, Korea, or other Southeast Asian country where all official languages are written in either an ideographic script (e.g., hanzi, kanji, or hanja), and/or other script based upon or similar in structure to an ideographic script, such as hangul or kana; or

England, if a license to the Software is purchased when you are in any jurisdiction not described above.

Jurisdiction. The respective courts of Santa Clara County, California when California law applies, Tokyo District Court in Japan, when Japanese law applies, and the competent courts of London, England, when the law of England applies, shall each have non-exclusive jurisdiction over all disputes relating to this agreement.

United Nations Convention on Contracts. This agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

Governing Law. This agreement, and any dispute arising out of the [SUBJECT MATTER OF THE AGREEMENT], shall be governed by laws of the State of [GOVERNING LAW STATE].

Governing Law and Consent to Jurisdiction and Venue

Governing Law. This agreement, and any dispute arising out of the [SUBJECT MATTER OF THE AGREEMENT], shall be governed by laws of the State of [GOVERNING LAW STATE].

Consent to Jurisdiction. Each party hereby irrevocably consents to the [exclusive, non-exclusive] jurisdiction and venue of any [state or federal] court located within [VENUE COUNTY] County, State of [VENUE STATE] in connection with any matter arising out of this [agreement / plan] or the transactions contemplated under this [agreement / plan].

Consent to Service. Each party hereby irrevocably

agrees that process may be served on it in any manner authorized by the Laws of the State of [GOVERNING LAW STATE] for such Persons, and 

waives any objection which it might otherwise have to service of process under the Laws of the State of [GOVERNING LAW STATE].

Severability. If any part of this [agreement /plan] is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

Waiver

Affirmative Waivers. Neither party's failure or neglect to enforce any of rights under this agreement will be deemed to be a waiver of that party's rights.

Written Waivers. A waiver or extension is only effective if it is in writing and signed by the party granting it.

No General Waivers. A party's failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.

No Course of Dealing. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.

Force Majeure. A party shall not be liable for any failure of or delay in the performance of this agreement for the period that such failure or delay is

 beyond the reasonable control of a party,

 materially affects the performance of any of its obligations under this agreement, and

 could not reasonably have been foreseen or provided against, but

will not be excused for failure or delay resulting from only general economic conditions or other general market effects.

20.10. Force Majeure

(a) No Liability. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.

(b) Best Efforts to Cure. In the event of a threatened default or default as a result of any cause beyond its reasonable control, the defaulting party shall nonetheless exercise its best efforts to avoid and cure such default.

(c) Right to Terminate. In the event such an event prevents performance thereunder for a period in excess of ninety (90) days, then the non-defaulting party may elect to terminate this Agreement and/or cancel or suspend any Purchase Orders thereunder by a written notice to the defaulting party.

Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.

This agreement has been executed by the parties.

[COMPANY NAME]

By:

Name:

Title:

[CUSTOMER NAME]

By:

Name:

Title:

EXHIBIT A

Premium Service Support

1. Premium Support Services

Premium Services Support ("Premium Support") services entitles the Customer to the following:

(a) Telephone or electronic support in order to help the Customer locate and correct problems with the Software.

(b) Bug fixes and code corrections to correct Software malfunctions in order to bring the Service into substantial conformity with the operating specifications.

(c) All extensions, enhancements and other changes that the Company makes or adds to the Service and which the Company offers, without charge, to all other Subscribers of the Service.

(4) Up to [NUMBER OF DEDICATED CONTACTS] dedicated contacts designated by the Customer in writing that will have access to support services.

2. Response and Resolution Goals

2.1 Severity 1: The Production system / application is down, seriously impacted and there is no reasonable workaround currently.

Upon confirmation of receipt, the Company will begin continuous work on the issue, and a customer resource must be available at any time to assist with problem determination.

Once the issue is reproducible or once we have identified the Software defect, the Company support will provide reasonable effort for workaround or solution within 24 hours.

2.2 Severity 2: The system or application is seriously affected. The issue is not critical and does not comply with the Severity 1 conditions. There is no workaround currently available or the workaround is cumbersome to use.

The Company will work during normal business hours to provide reasonable effort for workaround or solution within 7 business days, once the issue is reproducible.

2.3 Severity 3: The system or application is moderately affected. The issue is not critical and the system has not failed. The issue has been identified and does not hinder normal operation, or the situation may be temporarily circumvented using an available workaround.

The Company will work during normal business hours to provide reasonable effort for workaround or solution within 10 business days, once the issue is reproducible.

2.4 Severity 4: Non-critical issues.

The Company will seek during normal business hours to provide a solution in future releases of the Service.

SCHEDULE B

Software Service and Pricing

This Software Service and Pricing Schedule is effective upon the Software as a Service Agreement Effective Date, documents the Service (defined below) being purchased by ________________ ("Customer") under the terms and conditions of the Software as a Service Agreement.

1. Services

2. Term

The term begins upon the Schedule Effective Date and ends _____________ year (s) thereafter ("Subscription Term").

3. Subscription Fee

The total value of this Schedule is $ _______. Upon execution of this Schedule, the Company shall issue an invoice in accordance with the Software as a Service Agreement.

4. Customer Billing Information

Billing Department Name:

Billing Department Address:

Contact Name:

Contact Phone number:

Contact email:

5. Premium Support

Premium Support is [not] included in the Subscription Fee.

This agreement has been executed by the parties.

[COMPANY NAME]

By:

Name:

Title:

[CUSTOMER NAME]

By:

Name:

Title:

EXHIBIT A

Service Level Agreement

The Service will achieve System Availability (as defined below) of at least [98%] during each calendar month of the Subscription Term.

"System Availability" means the number of minutes in a month that the key components of the Service in a Customer production environment are operational as a percentage of the total number of minutes in such month, excluding downtime resulting from (a) scheduled maintenance, (b) events of force majeure as defined in the Software as a Service Agreement), (c) malicious attacks on the system, (d) issues associated with the Customer's computing devices, local area networks or internet service provider connections, or (e) inability to deliver services because of acts or omissions of Customer.

The Company reserves the right to

(a) take the Service offline for scheduled maintenance for which it has provided the Customer with reasonable notice and

(b) change its maintenance window upon prior notice to the Customer.

EXHIBIT B

Premium Service Support

1. Premium Support Services

Premium Services Support ("Premium Support") services entitles the Customer to the following:

(a) Telephone or electronic support in order to help the Customer locate and correct problems with the Software.

(b) Bug fixes and code corrections to correct Software malfunctions in order to bring the Service into substantial conformity with the operating specifications.

(c) All extensions, enhancements and other changes that the Company makes or adds to the Service and which the Company offers, without charge, to all other Subscribers of the Service.

(4) Up to [NUMBER OF DEDICATED CONTACTS] dedicated contacts designated by the Customer in writing that will have access to support services.

2. Response and Resolution Goals

2.1 Severity 1: The Production system / application is down, seriously impacted and there is no reasonable workaround currently.

Upon confirmation of receipt, the Company will begin continuous work on the issue, and a customer resource must be available at any time to assist with problem determination.

Once the issue is reproducible or once we have identified the Software defect, the Company support will provide reasonable effort for workaround or solution within 24 hours.

2.2 Severity 2: The system or application is seriously affected. The issue is not critical and does not comply with the Severity 1 conditions. There is no workaround currently available or the workaround is cumbersome to use.

The Company will work during normal business hours to provide reasonable effort for workaround or solution within 7 business days, once the issue is reproducible.

2.3 Severity 3: The system or application is moderately affected. The issue is not critical and the system has not failed. The issue has been identified and does not hinder normal operation, or the situation may be temporarily circumvented using an available workaround.

The Company will work during normal business hours to provide reasonable effort for workaround or solution within 10 business days, once the issue is reproducible.

2.4 Severity 4: Non-critical issues.

The Company will seek during normal business hours to provide a solution in future releases of the Service.

SCHEDULE C

Software Service and Pricing

This Software Service and Pricing Schedule is effective upon the Software as a Service Agreement Effective Date, documents the Service (defined below) being purchased by ________________ ("Customer") under the terms and conditions of the Software as a Service Agreement.

1. Services

2. Term

The term begins upon the Schedule Effective Date and ends _____________ year (s) thereafter ("Subscription Term").

3. Subscription Fee

The total value of this Schedule is $ _______. Upon execution of this Schedule, the Company shall issue an invoice in accordance with the Software as a Service Agreement.

4. Customer Billing Information

Billing Department Name:

Billing Department Address:

Contact Name:

Contact Phone number:

Contact email:

5. Premium Support

Premium Support is [not] included in the Subscription Fee.