FivePals – Terms and Conditions to Master SaaS Agreement
Last Updated May 20, 2018
THESE TERMS AND CONDITIONS (AS MAY BE UPDATED FROM TIME TO TIME AS SET FORTH HEREIN, THESE “TERMS AND CONDITIONS”) SHALL APPLY TO THE MASTER SOFTWARE AS A SERVICE AGREEMENT (THE “AGREEMENT”) ENTERED INTO BY YOU WITH FIVEPALS, INC. (“FIVEPALS”) THAT REFERS TO THESE TERMS AND CONDITIONS. BEFORE YOU ENTER INTO THE AGREEMENT, CAREFULLY READ THESE TERMS AND CONDITIONS. BY EXECUTING THE AGREEMENT, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU SHOULD NOT EXECUTE THE AGREEMENT. CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE RESPECTIVE MEANINGS ASCRIBED TO THEM IN THE AGREEMENT. AS USED HEREIN “YOU” MEANS LICENSEE (AS DEFINED IN THE AGREEMENT), AND “THE AGREEMENT” MEANS THE AGREEMENT TOGETHER WITH THESE TERMS AND CONDITIONS, WHICH ARE INCORPORATED INTO THE AGREEMENT BY REFERENCE.
TC-1. DATA AND OWNERSHIP.
(a) Licensee Data. As between FivePals and Licensee, Licensee shall exclusively own all right, title and interest in and to all Personal Data and other data submitted by Licensee (or its Authorized Users or guests of Licensee) in connection with its or their use of the SaaS Services, FivePals Software and Mobile Application (collectively, “Licensee Data”) and all intellectual property and proprietary rights anywhere in the world (“Proprietary Rights”) therein. Other than as set forth in Section TC-1(b) below, FivePals shall acquire no rights in any Licensee Data, including Personal Data, contained in or used with the SaaS Services, FivePals Software or Mobile Application by virtue of this Agreement. Other than as also set forth in Section TC-1(b) below, FivePals will only process information in accordance with Licensee’s instructions or requests.
(b) Licensee Grant to Use Certain De-Identified or Aggregate Licensee Data. Licensee hereby grants to FivePals a perpetual, irrevocable, non-exclusive, royalty-free, worldwide, transferable license to use, copy, reproduce, adapt, combine with other data, edit and re-format, generate, store, disclose, distribute, maintain a database of, make derivative works based upon, and exploit any and all Licensee Data that does not constitute Personal Data (“De-Identified or Aggregate Licensee Data”). FivePals may combine, aggregate, and modify any and all Licensee Data to remove any identifiers and create data that is not Personal Data. FivePals may use the De-Identified or Aggregate Licensee Data as it deems fit for any purpose (as used by FivePals, “FivePals Data”), including, without limitation, (i) to provide the SaaS Services to Licensee and Authorized Users or (ii) to analyze use of and develop new and/or improved products and services related to the FivePals Software, the SaaS Services, Mobile Application and/or other products and services. Licensee acknowledges and agrees that FivePals Data (as between FivePals and Licensee) is the sole and exclusive property of FivePals. For the avoidance of doubt, FivePals Data does not include any Personal Data.
(c) FivePals Intellectual Property. As between the parties, the SaaS Services, FivePals Software, Mobile Application and Documentation and all Proprietary Rights embodied therein (collectively, the “FivePals Intellectual Property”) shall remain the sole and exclusive property of FivePals. In addition, FivePals shall own any and all information, data and feedback concerning use or operation of the the FivePals Software, the SaaS Services and/or Mobile Application and any and all modifications, design changes, features and improvements to the FivePals Software, the SaaS Services and/or Mobile Application suggested by Licensee, or any of its officers, directors, employees or agents, or any Authorized User (collectively, “Feedback”) and FivePals shall have the right to use, in any manner and for any purpose whatsoever, any and all Feedback. Licensee agrees to assign and does hereby assign to FivePals all right, title and interest that Licensee may acquire in and to any and all FivePals Intellectual Property and Feedback. Neither the Agreement nor any Order Form shall grant to Licensee any ownership right or title of any kind in or to any FivePals Intellectual Property or Feedback.
TC-2. LICENSEE OBLIGATIONS.
With respect to any Personal Data processed in the context of the SaaS Services or FivePals Software, Licensee will be the “data controller” and FivePals the “data processor” as such terms are defined in applicable law. As the data controller, Licensee will comply with all applicable laws regarding the collection, use, and/or transfer of Personal Data, including the EU General Data Protection Regulation, data localization, cookie laws, and other information global protection laws, as applicable. Where required, Licensee will obtain consent for communications with individuals. To assist Licensee in developing its own applicable consent language, Licensee shall consider the illustrative disclosures contained in Exhibit B. Licensee is responsible for determining the appropriate disclosures and level of consent required under the law as it related to their business.
(b) Consumer Protection. Licensee shall comply with all applicable laws and regulations relating to consumer protection, marketing, promotion, and text messaging, email, direct mail, and other communications.
Where required, Licensee will obtain consent for communications with individuals. To assist Licensee in developing its own applicable consent language, Licensee shall consider the illustrative disclosures contained in Exhibit B. Licensee is responsible for determining the appropriate disclosures and level of consent required under the law as it related to their business.
(c) Prohibited Data: Special categories of Personal Data, as defined in the General Data Protection Regulation, are not permitted on the ALICE platform. Licensee shall not upload, transfer, or otherwise make available special categories of Personal Data to FivePals. Payment card or other financial information may not be entered on the ALICE platform unless otherwise specified in the Master SaaS Agreement.
(d) Authorized Users. During the Term, Licensee shall maintain an accurate list of all Authorized Users and, upon FivePals’s request from time to time, Licensee shall provide FivePals within five (5) days a written list of the names of all Authorized Users.
(e) Licensee Equipment. Other than the SaaS Services provided by FivePals, Licensee is responsible for all other services, equipment and facilities (including, without limitation, all hardware, telecommunications equipment, connectivity, cabling and software) required to access the SaaS Services. .Licensee agrees to provide at least thirty (30) days’ advance written notice to FivePals of any change, modification, or reconfiguration of components or elements of Licensee’s computer environment which may affect FivePals’s ability to deliver the SaaS Services. Licensee shall be responsible for procuring all licenses of third party software necessary for Licensee’s use of the SaaS Services
(f) Security; Authentication. Licensee shall cooperate with FivePals, and shall render all reasonable assistance requested by FivePals in preventing and identifying any unauthorized use of or access to the SaaS Services and/or FivePals Software. Licensee will follow reasonable authentication procedures provided by FivePals from time to time regarding access to the SaaS Services. Notwithstanding the generality of the foregoing, Licensee agrees that Licensee will (i) retain sole responsibility for the security and use of Licensee’s and its Authorized Users’ access credentials and (ii) employ reasonable screening and security procedures necessary to securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Saas Services.
TC-3. TERM AND TERMINATION.
(a) Term. The Agreement shall commence on the Effective Date and continue in effect for the initial term set forth on the Order Form, unless terminated earlier in accordance with the Agreement (the “Initial Term”); provided, that the Agreement shall automatically renew for successive one (1)-year terms (each, a “Renewal Term” and together with the Initial Term, collectively, the “Term”), unless one party provides written notice to the other at least thirty (30) days prior to the expiration of any term of its intention not to renew the Agreement, or unless otherwise terminated earlier in accordance with the Agreement.
(b) Termination. The Agreement may be terminated by FivePals in the event Licensee breaches any provision of the Agreement and fails to completely cure the breach within thirty (30) days (ten (10) days in the event of a breach of Licensee’s payment obligations) following FivePals’s written notice of the breach to Licensee; provided, however, that Licensee’s breach of any of its obligations in Section 2(c) of the Agreement or Section TC-7 of these Terms and Conditions shall be incapable of a cure and, in such event, FivePals shall have the right to terminate the Agreement immediately upon written notice to Licensee.
(c) Effect of Termination. Upon expiration or any termination of the Agreement, all rights and licenses granted to Licensee under Sections 2(a) and 2(b) of the Agreement shall immediately terminate and revert to FivePals and Licensee shall cease all use and refrain from all further use of the SaaS Services and the FivePals Software. Neither party shall incur any liability whatsoever for any damages, loss or expenses of any kind suffered or incurred by the other party arising from or incident to any termination of the Agreement by such party that complies with the terms of the Agreement whether or not such party is aware of any such damage, loss or expenses. Neither party shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other party arising from or incident to any termination of the Agreement by such party that complies with the Agreement, whether or not such party is aware of any such damage, loss or expenses. These Terms and Conditions, and Sections 5 and 6 of the Agreement, shall survive the expiration and any termination of the Agreement.
(a) Authority. Each party represents and warrants to the other party that (i) it has full power and authority under all relevant laws and regulations and is duly authorized to enter into the Agreement; and (ii) to its knowledge, the execution, delivery and performance of the Agreement by such party does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.
(b) General. FivePals warrants to Licensee that (i) the FivePals Software and SaaS Services, when operated in accordance with the Documentation, will perform the functions described in the Documentation, and (ii) the Maintenance and Support Services will be performed consistent with generally accepted industry standards. These warranties extend only to Licensee. FivePals makes no warranty as to the security of servers on which any Licensee Data resides. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION TC-4(B), THE SAAS SERVICES, THE FIVEPALS SOFTWARE AND ALL OTHER SERVICES AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, CONDITION OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FIVEPALS DOES NOT WARRANT THAT THE SAAS SERVICES WILL MEET LICENSEE’S REQUIREMENTS OR, EXCEPT AS PROVIDED IN HEREIN, THAT THE FIVEPALS SOFTWARE OR THE SAAS SERVICES WILL OPERATE UNINTERRUPTED, TIMELY, COMPLETELY SECURELY OR ERROR-FREE, OR THAT ANY ERROR IN THE FIVEPALS SOFTWARE OR THE SAAS SERVICES WILL BE CORRECTED, OR THAT THE LICENSEE DATA STORED WITHIN THE FIVEPALS SOFTWARE OR SAAS SERVICES WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
(c) Indemnification Procedure. A party entitled to be indemnified under the Agreement (the “Indemnified Party”), shall (i) notify the other party (the “Indemnifying Party”) in writing within thirty (30) days of receipt of notice of any claim, action, suit or proceeding subject to the Indemnifying Party’s indemnity under the Agreement; (ii) provide the Indemnifying Party with all information within the Indemnified Party’s possession that is required for the defense of such suit and shall reasonably cooperate with the Indemnifying Party and its attorneys in the investigation, trial and defense of such claim(s) and (iii) permit the Indemnifying Party to take control of the defense and investigation of such claim(s).
TC-6. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FIVEPALS HAVE ANY LIABILITY TO LICENSEE OR ANY THIRD PARTIES ARISING OUT OF OR RELATED TO THE AGREEMENT FOR (I) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, EVEN IF FIVEPALS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES, TECHNOLOGY OR RIGHTS. WITHOUT LIMITATION OF THE FOREGOING, THE TOTAL LIABILITY OF FIVEPALS FOR ANY AND ALL CLAIMS AGAINST FIVEPALS UNDER THE AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID BY LICENSEE TO FIVEPALS UNDER THE AGREEMENT WITHIN THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION GIVING RISE TO LIABILITY AROSE. THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN CONNECTION WITH THE AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
(a) Confidential Information. During the Term, Licensee may come into possession of FivePals’s Confidential Information. “Confidential Information” means any information that FivePals designates as confidential or that a reasonable person would understand to be confidential under the circumstances. Without limiting the foregoing, Confidential Information includes the terms of the Agreement, the FivePals Software, the SaaS Services, the Documentation, financial, business and technical plans and strategies, inventions, new products, code, services and technology. Licensee will hold and maintain all Confidential Information in strict confidence and will not use such information, except as permitted under the Agreement. Any Confidential Information supplied by FivePals or obtained by Licensee, as permitted under the Agreement, may only be used by Licensee for the purpose of exercising its rights under the Agreement. The foregoing restrictions shall not apply with respect to information which, as evidenced by Licensee’s written records: (i) is already known by Licensee at time of disclosure; (ii) becomes, through no act or fault of Licensee, publicly known; (iii) is received by Licensee from a third party without a restriction on disclosure or use; or (iv) is independently developed by Licensee without reference to FivePals’s Confidential Information. Licensee may disclose Confidential Information to the extent required to be disclosed by a court or governmental agency pursuant to a statute, regulation or valid order; provided that, to the extent permitted by applicable law, Licensee first notifies FivePals and gives it the opportunity to seek a protective order or to contest such required disclosure.
(b) Return of Information. Upon the earlier of FivePals’s request or the termination of the Agreement, Licensee will promptly return or destroy all Confidential Information and related materials in its possession and discontinue all further use of the Confidential Information. Upon FivePals’s request, Licensee will promptly certify that such action has been taken.
(a) Claim Limitation Period. Licensee expressly understands and agrees that any action or claim against FivePals arising from or relating to the Agreement shall be deemed irrevocably waived if not instituted within one (1) year from the event giving rise to such claim or action.
(b) Independent Contractor; Third Party Agreements. Licensee is and shall be deemed to be an independent contractor of FivePals and nothing contained herein shall be deemed to constitute a partnership between or a joint venture by the parties hereto, or constitute either party the employee or agent of the other. Licensee acknowledges that nothing in the Agreement gives Licensee the right to bind or commit FivePals to any agreements with any third parties. The Agreement is not for the benefit of any third party and shall not be deemed to give any right or remedy to any such party whether referred to herein or not.
(c) Notices. All notices or other communications required or permitted under the Agreement shall be in writing and shall be deemed to have been duly given either when personally delivered, one (1) business day following delivery by recognized overnight courier, or three (3) business days following deposit in the U.S. mail, registered or certified, postage prepaid, return receipt requested, to the addresses set forth in the Order Form.
(d) Injunctive Relief. Licensee agrees that in the event of any breach by Licensee of any of the covenants and agreements set forth in the Agreement, including, without limitation, the covenants and agreements set forth in Section 2(c) of the Agreement and Section TC-7 of these Terms and Conditions, FivePals would encounter extreme difficulty in attempting to prove the actual amount of damages suffered by it as a result of such breach and would not have adequate remedy at law in such event. Licensee therefore agrees that, in addition to any other remedy available at law or in equity, in the event of such breach, FivePals shall be entitled to an order of specific performance and temporary, preliminary and permanent injunctive relief from violation of any of said covenants and agreements from any court of competent jurisdiction without necessity of proving the amount of any actual damage to FivePals resulting from such breach.
(e) Assignment. The Agreement may not be assigned by Licensee, in whole or in part, without FivePals’s prior written consent. The Agreement may be freely assigned, in whole or in part, by FivePals.
(f) Governing Law; Dispute Resolution; Attorneys’ Fees. The Agreement shall be governed by and construed under the laws of the State of New York, without regard to its conflicts of law principles. Each party hereto expressly agrees that any action relating to the Agreement shall exclusively be brought in the state and federal courts located in New York, New York, and each party irrevocably consents to the jurisdiction of such courts. Each party expressly waives any objection that it may have based on improper venue or forum non conveniens to the conduct of any such suit or action in any such court. The prevailing party in any legal action instituted under or relating to the Agreement shall, in addition to other remedies, be entitled to be reimbursed by the other party for all expenses of such litigation, including reasonable attorneys’ fees.
(g) United States Government Restricted Rights. If Licensee is, or is entering into the Agreement on behalf of, any agency or instrumentality of the United States Government, the FivePals Software and SaaS Services are “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, Licensee’s use, reproduction, and disclosure of the FivePals Software and SaaS Services are governed by the terms of the Agreement.
(h) Miscellaneous. If any provision of the Agreement is held to be illegal or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that the remainder of the Agreement will continue in full force and effect and enforceable. No amendment, modification or supplement to the Agreement shall be binding, unless it is in writing and signed by both FivePals and Licensee; provided, however, that FivePals may modify these Terms and Conditions at any time by posting a notice on the website where these Terms and Conditions are hosted or through notice given to Licensee in the manner provided for in the Agreement. Licensee’s continued use of the FivePals Software, the SaaS Services and/or Mobile Application following any such notice constitutes Licensee’s acceptance of these Terms and Conditions as so modified. The waiver by either party of any breach or failure to require performance by the other party shall not constitute the waiver of any other or subsequent breach or diminish the right to require such performance in the future. Nothing express or implied in the Agreement is intended to confer, or confers, upon any person or entity other than the parties and any respective successors or permitted assigns of the parties, any rights, obligations, or remedies under the Agreement (whether as a third party beneficiary or otherwise). Neither party shall be liable for non-performance or delay in performance (other than of payments or confidentiality obligations) caused by any event reasonably beyond the control of such party. Headings and captions are for convenience only and are not to be used in the interpretation of the Agreement. Each party agrees that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of the Agreement. In the case of any discrepancy between these Terms and Conditions and the provisions set forth in the body of the Agreement, the provisions set forth in the body of the Agreement shall control. The Agreement (including these Terms and Conditions) together with any outstanding Order Forms, constitutes the complete and exclusive statement of the agreement between the parties relating to the subject matter of the Agreement, and all provisions, representations, discussions, and writings are merged in, and superseded by, the Agreement.