SAAS LICENSE TERMS OF SERVICE (TOS)
Last Updated: November 7, 2019
These SaaSLicense Services Terms and Conditions (“Terms”) are a legally binding agreement between you (a single natural or legal person, hereinafter referred to by the term “Customer”) and SaaSLicense, LLC, a Massachusetts limited liability company with offices at 233 Needham Street, Suite #550 Newton, MA 02646 (“SaaSLicense”) with regard to the copyrighted software provided under these Terms and any associated services provided by SaaSLicense (collectively, the “Services”) and further described in the registration form executed by Customer or accepted by Customer on SaaSLicense’s website that is subject to these Terms and that details the scope and fees associated with Customer’s subscription to the Services (“Registration”).
IMPORTANT – PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES. BY ACCESSING OR USING THE SERVICES IN ANY FORM OR MEDIA, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND UNDERSTANDS THESE TERMS AND THAT CUSTOMER AGREES TO BE BOUND BY THESE TERMS. IF CUSTOMER DOES NOT AGREE OR DOES NOT WISH TO BECOME A PARTY TO THESE TERMS, CUSTOMER SHOULD NOT ACCESS OR USE THE SERVICES. CUSTOMER CONFIRMS THAT IT UNDERSTANDS THESE TERMS AND AGREES TO BE BOUND BY THESE TERMS BY EXECUTING A REGISTRATION REFERENCING THESE TERMS OR BY CLICKING I ACCEPT ON SAASLICENSE’S WEBSITE WHEN ORDERING SERVICES.
IF CUSTOMER IS ENTERING INTO THESE TERMS ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY, GOVERNMENTAL ENTITY OR OTHER ENTITY (AN “ENTITY“), CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS. THE TERM “CUSTOMER” REFERENCED HEREIN REFERS TO: (1) THE ENTITY, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES OR (2) YOU, AS AN INDIVIDUAL, IN THE CASE OF A NON-LEGAL ENTITY.
THE “EFFECTIVE DATE” FOR THESE TERMS IS THE EARLIER OF THE FIRST DATE OF ANY APPLICABLE REGISTRATION OR THE FIRST DAY CUSTOMER USES OR ACCESSES THE SERVICES. EACH ORDER FORM MAY NOT BE CANCELLED ONCE THESE TERMS HAVE BEEN ACCEPTED, AND NO REFUNDS WILL BE GRANTED. Any terms or conditions appearing on the face or reverse side of any purchase order, purchase order acknowledgment or other order document that are different from, or in addition to, the terms of these Terms will not be binding on SaaSLicense, even if payment is accepted.
SaaSLicense may revise these Terms (and any linked documents referenced herein) from time to time and at its sole discretion; provided that such changes will not materially impact these Terms or its scope, or reduce SaaSLicense’s obligations to Customer. SaaSLicense will publish an updated version any revised Terms on its website, and shall use commercially reasonable efforts to notify Customer via email. Customer’s continued use of the Services will be deemed acceptance by Customer of any such revisions.
Any conflict between the terms and conditions set forth in these Terms and any Registration shall be resolved in favor of these Terms unless such Registration expressly references the conflicting provision in these Terms that it is intended to control and states that it is to control. Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by SaaSLicense regarding future functionality or features.
Subject to the terms and conditions of these Terms, and in consideration for the payment of fees set forth on the applicable Registration, SaaSLicense hereby grants to Customer, solely during the term of the applicable Registration, a non-exclusive, non-transferable license to access and use the Services solely for Customer’s internal business purposes as set forth in the Registration. Customer is responsible for all employees, consultants, or others (“Users”) who access and use the Services using Customer’s login credentials. Customer and its Users may not use the Services for any third party, or for any purpose other than Customer’s benefit. Customer is responsible for all activities conducted under its User logins (including any misuse) and for its Users’ compliance with these Terms. Customer responsible for obtaining any equipment and Internet service necessary to access and use the Services. Customer shall not attempt to access any SaaSLicense’s software, systems, programs or data that are not made available for Customer’s use and/or are not part of Customer’s subscription. SaaSLicense may make modifications to the Services or particular components of the Services from time to time provided that such modifications do not materially degrade any functionality or features of the Services.
- CUSTOMER DATA
“Customer Data” means all content, files, data and other materials provided by Customer or its Users to SaaSLicense for use in connection with the Services. Customer, and not SaaSLicense, is responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of all Customer Data. Customer warrants that it is the owner of (or otherwise has full legal authority to submit) the Customer Data to SaaSLicense. Customer is responsible for obtaining all consents (if any) that may be required by law in order to allow SaaSLicense to process and use Customer Data as described in these Terms. As between Customer and SaaSLicense, Customer retains ownership of all right, title and interest in and to all Customer Data.
By submitting, uploading, providing, transmitting or otherwise making available Customer Data to SaaSLicense, Customer hereby grants to SaaSLicense a nonexclusive, royalty-free, worldwide right and license to collect, access, use, process, transmit, display, publish, and adapt the Customer Data as required for SaaSLicense and its Subcontractors to provide, operate, improve, secure, support, and enhance the Services, to respond to service or technical problems and to operate its business.
- EVALUATION PERIOD
If Customer’s Registration includes an evaluation period, such evaluation period shall be limited to a period of thirty (30) days from the date of the Registration. If Customer does not provide SaaSLicense with written notice of its intent to terminate the subscription to the Services on or before the end of the evaluation period, Customer’s subscription shall automatically convert to an annual subscription for the same Services, and Customer shall automatically be billed the applicable fees associated with such annual subscription. Customer agrees to pay all such fees. Customer further acknowledges that any use of the Services evaluation period is subject to these Terms.
- INTELLECTUAL PROPERTY
Customer acknowledges and agrees that as between SaaSLicense and Customer, all right, title and interest in and to (a) the Services, (b) the Pre-Existing Materials (defined below), (c) the Documentation (defined below), and (d) in each of (a), (b) and (c), all derivatives and copies thereof (including any and all patents, copyrights, utility models, industrial designs/design patents, trade secret rights, registered and/or unregistered trademarks, trade names and other proprietary and/or industrial rights embodied therein or associated therewith) (where (a), (b), (c) and (d) are collectively, the “SaaSLicense Materials”) are and shall remain SaaSLicense’s or its licensors’. These rights are protected by the provisions of international treaties and applicable national law. All rights not expressly granted to Customer in these Terms are reserved by SaaSLicense and its licensors. The Services are licensed, not sold.
“Documentation” means the documentation for the Services generally supplied by SaaSLicense to assist its customers in the use of the Services, including user and administrator guides and manuals and other written materials.
“Pre-Existing Materials” means any software, information, templates, frameworks, tools, methodologies, data, designs, concepts, ideas, techniques, processes, know-how, technology, algorithms, and plug-ins, owned by SaaSLicense prior to the commencement or independent of the Services and all intellectual property rights therein, some of which may be used by SaaSLicense in performance of the Services hereunder, and shall also include any enhancements made by SaaSLicense to the Pre-Existing Materials while performing the Services hereunder.
If Customer sends SaaSLicense ideas, suggestions, enhancement requests, feedback, suggestions or other materials related to the Services or Customer’s use thereof (collectively, “Feedback”), Customer agrees that SaaSLicense may, at any time, without restriction, fully exploit in any medium any Feedback that Customer provides to SaaSLicense. Feedback is not confidential. SaaSLicense is and shall be under no obligation (1) to pay compensation for any Feedback; or (2) to respond to any Feedback.
Unauthorized use, resale or commercial exploitation of the Services in any way is expressly prohibited. Customer and its Users shall not (and shall not authorize or permit any third party to): (i) modify, alter, adapt, translate, decompile, disassemble or reverse engineer the SaaSLicense Materials; (ii) attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the SaaSLicense Materials or any portion thereof; (iii) sell, loan, lease, transfer, license, sublicense, copy (except as expressly permitted herein), market, distribute or the SaaSLicense Materials; (iv) use the SaaSLicense Materials for the purposes of creating a competitive product or service, or to copy any ideas, features, functions or graphics of the SaaSLicense Materials; or (v) use the SaaSLicense Materials for any timesharing, service bureau, subscription, rental or other computer based services to third parties.
Customer shall take all reasonable precautions to prevent unauthorized or improper use or disclosure of the SaaSLicense Materials. Customer and its Users will not input or upload to the Services (via Customer Data or otherwise) any virus, Trojan horse, worm, time bomb, malicious logic, trap or back door, or computer programming routine, device, or other feature, that is intended to delete, disable, damage, interfere with, intercept, expropriate, or provide unauthorized access to the SaaSLicense Materials or any other software, program, data, device, system, or service. Customer and its Users shall not remove, alter or obscure any trademark, proprietary label or notice accompanying or incorporated in the SaaSLicense Materials.
Customer will not use the SaaSLicense Materials to engage in unlawful or abusive behavior, or to encourage others to engage in or foster such behavior, including but not limited to: (i) breaching any applicable local, national or international law or regulation; (ii) violating or misappropriating the legal rights of others, including but not limited to privacy rights and intellectual property rights, or exposing trade secrets or other confidential information of others; (iii) interfering with the use of the Services, or the equipment used to provide the Services, including but not limited to exceeding allowed bandwidth by transferring excess data, using any Services in a way that consumes a disproportionate share of the resources or otherwise interferes with the normal operation of the Services; (iv) altering, disabling, interfering with, or circumventing any aspect of the Services, including but not limited to permitting or facilitating unauthorized access to the SaaSLicense Materials; or (v) using the SaaSLicense Materials for any unlawful or fraudulent purpose.
In addition to SaaSLicense’s other remedies hereunder, SaaSLicense reserves the right to suspend Customer’s or any User’s right to access the Services if Customer or a User has violated any provision of this Section 6. ,Customer shall indemnify, defend, and hold SaaSLicense harmless from and against any and all Losses resulting from a claim, suit, action, or proceeding brought by any third party against SaaSLicense arising from the Customer Data or Customer’s breach of this Section 6.
- AGGREGATED DATA
Customer acknowledges and agrees that both during the term of these Terms and thereafter, SaaSLicense may collect, analyze, disclose, distribute, copy, display and use Aggregated Data for the purpose of providing, operating, analyzing, and improving the SaaSLicense Materials and other SaaSLicense products and services. SaaSLicense will not publicly disclose any Aggregated Data unless it is in aggregated and anonymized form that would not permit a third party to identify the data as associated with Customer or any of its Users. “Aggregated Data” means anonymized or aggregated data, as well as information, statistics, and analysis derived from Customer’s use of the Services.
- THIRD PARTIES
Certain aspects of the Services may require Customer to register with, and agree to the terms of, third party service providers in order to utilize such Services. SaaSLicense may also provide links or other access to other third party service providers as a convenience to Customer. Any use by Customer of the services of any third party service providers is at Customer’s sole risk. SaaSLicense has no liability whatsoever arising from or relating to Customer’s use of any such third party services, and SaaSLicense make no representations or warranties with respect to such third party services. Please be sure to read any terms and policies that may apply to the third party services.
- FEES; PAYMENT TERMS
Customer agrees to pay SaaSLicense for the Services on the basis and at the rates specified in each Registration. Unless otherwise set forth on the Registration, payment shall be due within thirty (30) days after receipt of SaaSLicense’s invoice and shall be made in US Dollars. In addition to paying the applicable fees, Customer shall also pay all pre-approved reasonable travel and out-of-pocket expenses (if any) incurred by SaaSLicense in connection with the Services. Except as otherwise expressly set forth in these Terms or the Registration, all fees are non-refundable. Unless otherwise set forth in the applicable Registration, SaaSLicense may increase the fees associated with any Services at the start of any renewal period.
Customer agrees to pay a late charge of one percent (1%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute, and not paid when due.
Fees are exclusive of taxes. Customer shall be responsible for the payment of all sales, use and similar taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of SaaSLicense and any taxes or obligations imposed upon SaaSLicense under federal, state and local wage laws.
During the term of these Terms, each party will regard any information provided to it by the other party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). The SaaSLicense Materials are SaaSLicense’s Confidential Information. Confidential Information shall also include information which, to a reasonable person familiar with the disclosing party’s business and the industry in which it operates, is of a confidential or proprietary nature. The receiving party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, subcontractor, independent contractor, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective of the disclosing party’s Confidential Information than these Terms. The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing party. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder.
Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of these Terms; or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
Notwithstanding any other provision of these Terms, both parties acknowledge that any use of the disclosing party’s Confidential Information in a manner inconsistent with the provisions of these Terms may cause the disclosing party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both parties agree that, in addition to any other remedy to which the disclosing party may be entitled hereunder, at law or equity, the disclosing party shall be entitled to seek an injunction or injunctions to restrain such use in addition to other appropriate remedies available under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. SAASLICENSE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED. THERE ARE NO WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, OR SUITABILITY.
- LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SAASLICENSE SHALL NOT be liable to CUSTOMER or any third party for loss of profits, or special, indirect, incidental, consequential or exemplary damages, including without limitation loss of profits and costs, loss of business, loss of savings, loss of Customer Data, or loss of goodwill, in connection with the performance of the Services, or the performance of any other obligations under these Terms, even if it is aware of the possibility of the occurrence of such damages.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, The total cumulative liability of SaaSLicense to Customer for any and all claims and damages under these Terms, whether arising by statute, contract, tort or otherwise, will not exceed the Services fees paid by Customer to SaaSLicense under the Registration for the Services which form the subject of the claim during the six (6) month period immediately preceding the event giving rise to the claim.
The term of each Registration for the Services shall be set forth on the Registration. Unless otherwise expressly set forth in the Registration, the term of each Registration shall automatically renew for successive periods equal in length to the term of the initial Registration (except for evaluation periods, which shall automatically renew for successive 12 month periods) unless either party provides the other with notice of its intent to terminate at least ninety (90) days prior to the end of the then-current Registration (or renewal thereof). SaaSLicense reserves the right to change the rates, applicable charges and usage policies and to introduce new charges for such Registration upon providing Customer written notice thereof (which may be provided by e-mail) prior to the then current renewal date of the applicable Registration.
Either party may terminate any Registration (i) immediately in the event of a material breach of these Terms or any such Registration by the other party that is not cured within thirty (30) days of written notice thereof from the other party, or (ii) immediately if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of these Terms and each Registration.
Upon any termination or expiration of any applicable Registration, SaaSLicense shall no longer provide the applicable Services to Customer and Customer shall cease and cause its Users to cease using the Services and shall not submit any additional Customer Data. Customer shall pay SaaSLicense for all fees that had accrued prior to the termination date. Except as expressly provided herein, termination of these Terms by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Upon termination of these Terms, each party shall promptly return or destroy all Confidential Information of the other party in its possession. Within thirty (30) days following termination, Customer may retrieve Customer Data in accordance with established and reasonable system access procedures. After such period, SaaSLicense will have no further obligation to store and/or make available Customer Data and may delete the same.
- UNITED STATES GOVERNMENT USE
The following provision applies only if Customer is a branch or agency of the United States Government or is licensing the Services on behalf of the United States Government. The Services are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the Government for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995). Use, duplication, or disclosure of the Services by the United States Government is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR- 52-227.19, as applicable.
- EXPORT LAWS
Customer agrees: (i) to fully comply with all U.S. and other relevant export laws and regulations (collectively the “Export Laws”) to assure that the SaaSLicense Materials or any direct product thereof are not directly or indirectly exported in violation of the Export Laws, (ii) that the Services ordered hereunder will not be used in violation of any Export Laws, including for proliferation of any nuclear, chemical, or biological weapons or missile delivery systems and will not be diverted, and (iii) to indemnify SaaSLicense against any damage, loss, liability or expense (including attorneys’ fees) that SaaSLicense may incur as a result of Customer’s failure to comply with the Export Laws. Customer represents and warrants that it is not a citizen of, or otherwise located within, an embargoed nation, as defined in the Export Laws, and that it is not otherwise prohibited under the Export Laws from receiving the Services.
- GENERAL PROVISIONS
These Terms, including all Registrations, contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties relating thereto and is binding upon the parties and their permitted successors and assigns. These Terms shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting these Terms in construing or interpreting the provisions hereof.
Customer may not assign its rights or delegate its duties under these Terms either in whole or in part without the prior written consent of SaaSLicense, and any attempted assignment or delegation without such consent will be void.
SaaSLicense shall have sole discretion in staffing the Services and may assign the performance of any portion of the Services to independent contractors and subcontractors; provided that SaaSLicense shall be responsible for the performance of any such independent contractors and subcontractors under these Terms.
These Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA without regard to its conflict of law provisions. Any legal action or proceeding with respect to these Terms shall be brought in the state or federal courts in Boston, Massachusetts. By execution and delivery of these Terms, each of the parties hereto accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts.
SaaSLicense and Customer are independent contractors, and nothing in these Terms shall be construed as making them partners or creating the relationships of employer and employee or principal and agent between them, for any purpose whatsoever. Neither party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other party’s name or on its behalf.
Nonperformance of SaaSLicense shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
SaaSLicense shall have the right to publish a “win announcement” press release that announces that Customer has selected SaaSLicense to perform the Services. SaaSLicense shall further have the right to use and display its relationship with Customer in its marketing and sales promotions activities by using Customer’s name and logo on SaaSLicense’ website and in customer listings during the term of the Agreement.
Any notice, approval, request, authorization, direction or other communication under these Terms shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the party set forth on the applicable Registration. Either party may change its address by giving written notice of such change to the other party.
Nothing contained in these Terms is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a party to any such person.
Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either party to exercise any of its rights under these Terms will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of these Terms will not affect the validity or enforceability of any of the other provisions hereof, and these Terms will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.