The SAAS Order Form between Setpoint Technologies and Customer is governed by these Terms and Conditions (Together with the Order Form; the “Agreement”). This agreement governs the relationship between Setpoint Technologies and Customer. Capitalized Terms Used and not defined herein have the definitions set forth in the Order Form.
“Customer Data” means all data, information and other materials that are either (a) submitted by or on behalf of Customer to the Platform or collected by Setpoint Technologies on behalf of Customer, or (b) provided by Customer to Setpoint Technologies specifically for use by Setpoint Technologies in the course of the Services.
“Documentation” means any user guide, help information and other documentation and information generally provided to users of the Platform that is provided by Setpoint Technologies to Customer in electronic or other written form.
“Intellectual Property Rights” means any and all patents, copyrights, trade secrets, trademarks and other proprietary or intellectual property rights recognized in any jurisdiction worldwide.
“Platform” means services or products hosted by or on behalf of Setpoint Technologies for the benefit of Customer, as set forth in an Order Form.
“Services” means the services as set forth in an applicable Order Form.
2.1. Order Forms. This Agreement will be implemented through one or more Order Forms. Any change to the terms of this Agreement within an Order Form will apply only to the Platform or Services described therein. Subject to all terms and conditions of this Agreement, Setpoint Technologies will use commercially reasonable efforts to provide access to the Platform, Services and Documentation to Customer.
2.2. Users. Customer must provide accurate and complete information and keep the Customer’s account updated. Customer agrees to take all necessary steps to protect the confidentiality of username and password information and to ensure that appropriate procedures are in place to prevent misuse. The sharing of username and password information to access the Platform is strictly prohibited. Customer will be responsible for the acts or omissions of any person who accesses the Platform using passwords or access procedures provided to or created by Customer. Setpoint Technologies reserves the right to terminate or suspend Customer’s access to the Platform under the following circumstances: (a) for scheduled or emergency maintenance to the Platform; (b) if Setpoint Technologies determines in its sole discretion that (i) Customer is in violation of this Agreement, (ii) Customer is using the Platform for fraudulent activities or in violation of applicable law, (iii) Customer’s account or the account of any user may have been used by an unauthorized third party or (iv) Customer’s use of the Platform poses a security risk to Setpoint Technologies or to any third party, or otherwise adversely affects the Platform; (c) if required by law enforcement or government agency, or otherwise in order to comply with applicable law or regulation; or (d) Customer fails to meet any payment obligation set forth in Section 5 of this Agreement (any such suspension described in subclauses (a)-(d), an “Access Suspension”). Setpoint Technologies will use commercially reasonable efforts to provide written notice of any Access Suspension to Customer and to provide updates regarding resumption of access to the Platform following any Access Suspension. Setpoint Technologies will use commercially reasonable efforts to resume providing access to the Platform as soon as reasonably possible after the event giving rise to the Access Suspension is cured. Setpoint Technologies will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur as a result of an Access Suspension.
(a)License. Customer hereby grants to Setpoint Technologies a worldwide, non-exclusive, royalty-free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Customer Data for the purpose of providing the Platform and Services to Customer. Customer bears all responsibility and liability for the accuracy and completeness of the Customer Data provided to Setpoint Technologies hereunder.
2.3. Third Party Services. Customer acknowledges and agrees that Setpoint Technologies may use third-party vendors, hosting partners, application programming interfaces (APIs) and/or other services and software operated or provided by third parties (“Third Party Services”) to provide the necessary hardware, software, networking, storage and related technology required to provide the Platform and/or Services. Setpoint Technologies is not and will not be liable or responsible for the operation of any Third Party Services nor the availability or operation of the Platform and/or Services to the extent such availability and operation is dependent upon Third Party Services. For Third Party Services required to be procured by Customer, Customer is solely responsible for obtaining any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Setpoint Technologies does not make any representations or warranties with respect to Third Party Services and is not responsible or liable for any acts or omissions of any such third party providers.
2.4. Modifications. Any upgrades, patches, enhancements, fixes or other modifications for the Platform or Documentation that Setpoint Technologies generally makes available to customers at no additional charge become subject to this Agreement
2.5. Cooperation. Customer acknowledges that the Platform and/or Services may require the reasonable cooperation of Customer personnel, as may be requested by Setpoint Technologies from time to time. Customer’s failure to timely perform any of its obligations under this Agreement, or provide any requested cooperation, approval or consent will relieve Setpoint Technologies of its dependent obligations to the full extent of such Customer delay.
3.1. Restrictions. Except as expressly permitted in this Agreement, Customer will not directly or indirectly: (a) use the Platform or Services to create any service, software, documentation or data that is similar to or competes with any aspect of the Platform or Services; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Platform or Services, or the underlying ideas, algorithms or trade secrets therein, except to the extent that such restrictions are expressly prohibited by applicable statutory law; (c) use the Documentation for any reason other than in connection with the Platform or Services; (d) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party; (e) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Platform or Services; (f) perform benchmark testing or analysis of the Platform; (g) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (h) permit any third party to engage in any of the foregoing proscribed acts.
3.2. Proprietary Rights. Customer and its licensors retain all right, title and interest in and to the Customer Data and all Intellectual Property Rights therein. Except for the limited rights expressly granted to Setpoint Technologies hereunder, no other license is granted and no other use is permitted. Setpoint Technologies and its licensors retain all right, title and interest in and to the Platform, Services, Documentation and all Intellectual Property Rights therein. Except for the limited rights expressly granted to Customer hereunder, no other license is granted and no other use is permitted.
3.3. Feedback. All Customer (a) suggestions for correction, change or modification to the Platform or (b) evaluations, feedback, information and reports provided to Setpoint Technologies hereunder (collectively, “Feedback”) will be the property of Setpoint Technologies and Customer will and hereby does assign any rights in such Feedback to Setpoint Technologies. Customer will further assist Setpoint Technologies, at Setpoint Technologies’ expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights assigned.
3.4. Aggregated Anonymous Data. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Setpoint Technologies may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Platform and Services to Customer, (B) testing, improving and operating Setpoint Technologies’ products and services, and (C) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for Setpoint Technologies’ business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing the Platform and any of Setpoint Technologies’ other products or services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Setpoint Technologies in connection with Customer’s use of the Platform and Services, but only in aggregate, anonymized form which can in no way be linked specifically to Customer.
4.1. Confidentiality Obligations. During the term of this Agreement, from time to time, either party may disclose (the “Disclosing Party”) or make available to the other party (the “Receiving Party”), whether orally, electronically or in physical form, confidential or proprietary information concerning the Disclosing Party and/or its business, technology, products or services in connection with this Agreement that is marked or otherwise identified as “confidential” or “proprietary” at the time of disclosure or disclosed in such a manner or of such a nature that a reasonable person would understand such information to be confidential or proprietary (“Confidential Information”). Each party agrees that during the term of this Agreement and thereafter: (a) it will use Confidential Information belonging to the Disclosing Party solely for the purposes of this Agreement; and (b) it will not disclose Confidential Information belonging to the Disclosing Party to any third party (other than the Receiving Party’s employees, contractors and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use consistent with those contained herein) without first obtaining the Disclosing Party’s prior written consent. Upon request by the Disclosing Party, the Receiving Party will return to the Disclosing Party or destroy any Confidential Information.
4.2. Confidentiality Exclusions. Confidential Information will not include any information that: (a) is or becomes generally known in the industry, through no act or omission on the part of the Receiving Party; (b) was previously known by the Receiving Party without restriction; (c) is disclosed to the Receiving Party by a third party without breach of any separate nondisclosure obligation; or (d) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party.
4.3. Required Disclosures. Nothing herein will prevent the Receiving Party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the Receiving Party will, to the extent legally permitted, use reasonable efforts to (a) promptly notify the Disclosing Party in writing of such requirement to disclose and (b) cooperate with the Disclosing Party, at the Disclosing Party’s expense, in protecting against or minimizing any such disclosure or obtaining a protective order.
5.1. Fees and Payment Terms. Customer agrees to pay Setpoint Technologies all fees and expenses in the amounts and at the times specified in the applicable Order Form (the “Fees”). Except as otherwise set forth in an Order Form, all amounts due hereunder will be due upon receipt of the invoice in U.S. dollars. Setpoint Technologies shall provide written notice of any changes in fees prior to the commencement of the Renewal Notice Period.
5.2. Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes under this Agreement and all Order Forms, excluding Taxes based solely on Setpoint Technologies’ net income. If Setpoint Technologies is deemed to have the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides Setpoint Technologies with a valid tax exemption certificate.
6.1. Customer. Customer represents and warrants to Setpoint Technologies that:
(a)Customer owns all right, title and interest in and to the Customer Data, or Customer has otherwise secured all necessary rights in the Customer Data as necessary to permit the access, use and distribution thereof as contemplated by this Agreement, and that the Customer Data does not and will not infringe, violate or misappropriate the intellectual property rights of any third party;
(b)the Customer Data does not contain and will not install any viruses, worms, malware, Trojan horses or other code that could harm or impair the functioning of the Platform; and
(c)the provision of any Customer Data hereunder, and Setpoint Technologies’ use of the Customer Data as authorized in this Agreement does not and will not violate any applicable laws, rules or regulations.
6.2. Setpoint Technologies. Setpoint Technologies represents and warrants that: (a) the Platform will operate materially in accordance with the Documentation during the term of the applicable Order Form; (b) Setpoint Technologies uses industry standard methods to scan the Platform for viruses, Trojan horses and other harmful code; and (c) Setpoint Technologies will perform the Services in a professional and workmanlike manner. In the event of failure to satisfy any of these warranties, Customer will provide notice to Setpoint Technologies within thirty (30) days of such failure. Setpoint Technologies will, as Customer’s sole and exclusive remedy, either use its commercially reasonable efforts to: (1) promptly repair the Platform so that it materially conforms to the Documentation; or (2) promptly re-perform the Services.
6.3. Disclaimers. SETPOINT TECHNOLOGIES DOES NOT WARRANT THAT THE PLATFORM, SERVICES OR DOCUMENTATION WILL MEET CUSTOMER’S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, SETPOINT TECHNOLOGIES HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PLATFORM, SERVICES AND DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
7.1. Setpoint Technologies.
(a)Indemnity. Except as provided below, Setpoint Technologies will indemnify, defend and hold Customer harmless from liability to unaffiliated third parties resulting from infringement by the Platform of any United States patent or any copyright or misappropriation of any trade secret. If the Platform becomes or, in Setpoint Technologies’ opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Setpoint Technologies may, at its option (i) obtain for Customer the right to continue using the Platform or (ii) replace or modify the infringing portions of the Platform so that it becomes non-infringing without substantially compromising its principal functions. If (i) and (ii) are not reasonably available to Setpoint Technologies, then it may terminate this Agreement with respect to the infringing aspects of the Platform upon written notice to Customer and refund to Customer any Fees for the Platform that were pre-paid for the then-current term, pro-rated for the remainder thereof in respect of such infringing aspects of the Platform. The foregoing states the entire liability of Setpoint Technologies, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Platform, Services or any part thereof or its use or operation.
(b)Exclusions. Setpoint Technologies will have no liability or obligation hereunder with respect to any liability in respect of: (i) any use of the Platform not strictly in accordance with this Agreement or in an application or environment for which it was not designed or contemplated; (ii) modifications, alterations, combinations or enhancements not created by or for Setpoint Technologies; (iii) any portion of the Platform that implements Customer’s requirements; (iv) Customer’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement; (v) any Intellectual Property Right in which Customer has an interest; or (iv) any Customer Data.
7.2. Customer. Customer will indemnify, defend and hold Setpoint Technologies harmless from liability to unaffiliated third parties resulting from resulting from:
(a)claims excluded under Section 7.1(b);
(b)Customer’s use of the Platform or Services in violation of this Agreement; and
(c)Setpoint Technologies’ authorized use of any Customer Data.
7.3. Procedures. Any claim for indemnification hereunder is contingent upon the indemnified party providing: (a) prompt written notice of the liability; (b) reasonable cooperation, information and assistance in connection therewith; and (c) the indemnifying party with the sole control and authority to defend, settle or compromise such liability, provided that the indemnified party may participate in such defense at its sole cost. The indemnifying party will not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party will not be liable for any settlement made without its prior written consent.
8.1. LIMITATIONS. EXCEPT FOR ANY BREACH OF SECTION 4 (CONFIDENTIALITY), INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 7 OR SETPOINT TECHNOLOGIES’ GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, IN NO EVENT WILL SETPOINT TECHNOLOGIES BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO SETPOINT TECHNOLOGIES HEREUNDER DURING THE PREVIOUS TWELVE (12) MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1. Term of Agreement. This Agreement will commence on the Effective Date and, unless earlier terminated as provided herein, will continue for the term specified in the applicable Order Form, which term will automatically renew for successive terms of equal length, unless Customer notifies Setpoint Technologies of its intent not to renew this Agreement at least ninety (90) days prior to the end of the applicable term (the “Renewal Notice Period”).
9.2. Termination. Setpoint Technologies may terminate this Agreement for convenience upon sixty (60) days’ prior written notice. This Agreement may also be terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within sixty (60) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course. Termination of this Agreement will terminate all outstanding Order Forms, provided that termination of any Order Form will not terminate this Agreement.
9.3. Effects of Termination. Upon any expiration or termination of any Order Form or this Agreement, all corresponding rights, obligations and licenses of the parties will cease, except that: (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) will survive; (b) Customer will cease using the Platform and Services (if Customer continues to use the Platform or Services, then Setpoint Technologies reserves the right to continue to charge Customer); (c) upon Customer’s request received within thirty (30) days following expiration or termination, Setpoint Technologies will return all Customer Data in a format mutually agreed by the parties to the extent it is technically feasible for Setpoint Technologies to do so (provided that Setpoint Technologies may retain any Aggregate Data in its possession or control), otherwise Customer’s data will be permanently deleted; and (d) the provisions of Sections 3.2 (Proprietary Rights), 3.3 (Feedback), 4 (Confidentiality), 5 (Payments), 6.3 (Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9.3 will survive.
10.1 Entire Agreement. This Agreement (including the Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement. Any inconsistent or additional terms on any related purchase order, vendor form, invoices, policies, confirmation or similar form, even if signed by the parties hereafter, will have no effect under this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of this Agreement will control unless otherwise explicitly set forth in an Order Form. No modification, consent or waiver under this Agreement will be effective unless in writing and signed by both parties. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.2. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, USA, without regard to its conflicts of law provisions. Except as set forth in Section 10.3 below, exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Austin, Texas, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
10.3. Remedies. Each party agrees that, in the event of any breach or threatened breach of Section 3.1 (Restrictions) or 4 (Confidentiality), the non-breaching party may suffer irreparable damage for which it may have no adequate remedy at law. Accordingly, the non-breaching party will be entitled to seek injunctive and other equitable remedies in any competent court to prevent or restrain such breach or threatened breach, without the necessity of posting any bond or other surety.
10.4. Notices. All notices under this Agreement will be in writing and delivered to the parties at their respective physical or e-mail addresses stated herein or at such other address designated by written notice in accordance with this Section. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
10.5. Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control including, without in any way limiting the generality of the foregoing, fire, explosion, earthquake, storm, flood, strike, war, insurrection, riot, act of God or the public enemy, epidemic or pandemic, failures in any telecommunications, network or other service or equipment that are not within a party’s reasonable control, unauthorized access, breach of firewalls or other hacking by third parties, instructions of Government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement), the affected party’s performance will be excused or extended for the period of delay or inability to perform due to such occurrence.
10.6. Publicity. Customer hereby grants to Setpoint Technologies a non-exclusive, royalty-free, limited license to use Customer’s name, logo and trademark(s) (collectively “Trademarks”) on Setpoint Technologies’ website and in other marketing materials to identify Customer as a customer, provided that Setpoint Technologies will: (a) only use Trademarks in the form and manner and in accordance with the quality standards and usage guidelines that Customer specifically prescribes; and (b) immediately cease all use of the Trademarks upon termination of this Agreement for any reason.
10.7. Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. However, without consent, Setpoint Technologies may assign this Agreement to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement will be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of each party hereto.
10.8. Third Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by, Customer and Setpoint Technologies. This Agreement will not be deemed to create any rights in third parties or to create any obligations of a party to any third parties.
10.9. Independent Contractors. The parties will be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.