Terms & Conditions August 2023
Effective August 28, 2023
TERMS AND CONDITIONS
1. DEFINITIONS
1.1 “Affiliate” means any entity (a) controlled, directly or indirectly, by, under common control with, or controlling a party to this Agreement, and specifically includes subsidiaries, partnerships, joint ventures, and other entities or operations for which the party has operational or management control, where “control” means the power, direct or indirect, to direct or cause the direction of the management and policies of such entity whether by contract or otherwise and, (b) in any event and without limitation of the previous sentence, owning the majority of the voting stock, shares, securities or assets of another entity, but in each case only for so long as such ownership or control will continue.
1.2 “Authorized User” means users of the SaaS Services consisting of Customer employees, contractors, consultants, Suppliers, and agents and third parties with whom Customer transacts business, each of whom are uniquely assigned user IDs by Customer or SourceDay. Customer may permanently (i.e., not for a predefined temporary period) replace one Authorized User with another if the original Authorized User no longer has access to the SaaS Services.
1.3 “Customer Data” means Customer’s data and materials of any kind submitted by Customer to or through the SaaS Services including into the SaaS Services by Customer’s Authorized Users.
1.4 “Documentation” means manuals, user guides, and other technical written materials related to the use of the SaaS Services made generally available to customers, as may be updated from time to time.
1.5 “ERP System” means, collectively, Customer’s enterprise resource planning and accounts payable system.
1.6 “Go Live Date” means the date Customer commences using the SaaS Services for production purposes.
1.7 “Support Services” means the IT and other technical support for the SaaS Services described in Schedule B. For clarity, Support Services do not include Professional Services (as defined in Section 2.1.)
1.8 “Order” means the order schedule pursuant to which from time to time Customer orders SaaS Services and Implementation Services (as defined below). The initial Order is attached hereto as Schedule A .
1.9 “Order Effective Date” means the date an Order becomes effective and is generally set forth in the first line of the first table of the applicable Order.
1.10 “Project Kickoff Date” means the date Implementation Services commence.
1.11 “SaaS Services” means the online, web-based software-as-a-service (SaaS) made available to Customer by SourceDay as set forth in the Order and the Documentation (as defined below), including any updates and upgrades thereto provided or made available to Customer by SourceDay under this Agreement.
1.12 “Services Start Date” is the earlier of ninety (90) days after the Project Kickoff Date or the Go Live Date.
1.13 “Subscription Period” means the period set forth in an Order during which Customer may use the SaaS Services.
1.14 “Suppliers” means vendors/suppliers to whom Customer issues purchase orders and makes payments.
1.15 “Unit” means an item, in addition to Authorized Users, described in the applicable Order upon which the fees
set forth in the Order are calculated.
2. SERVICES
2.1 Implementation and Professional Services. In connection with the setup and provision of the SaaS Services, SourceDay will provide certain implementation services (“Implementation Services”) and may provide other professional services (together, referred to as “Professional Services”) each as set forth in the Order or in a separate
Statement of Work (“SOW”).
Statement of Work (“SOW”).
2.2 SaaS Services. SourceDay will provide Customer with access to the SaaS Services during the Subscription Period solely for Customer’s internal use in accordance with the Documentation f or the number of Authorized Users and other Units set forth in the applicable Order. Customer will be responsible for providing and maintaining its own ERP System, network connectivity, electric power, and the hardware and software infrastructure necessary to access the SaaS Services through the Internet (collectively, the “Customer
Infrastructure”), and SourceDay will not be liable in any way for any failures or defects arising from or relating to the Customer Infrastructure.
Infrastructure”), and SourceDay will not be liable in any way for any failures or defects arising from or relating to the Customer Infrastructure.
2.3 Support Services. SourceDay will provide Customer with the Support Services during the applicable Subscription Period. SourceDay may modify or otherwise change its Support Services but will not take any such action during a Subscription Period that would materially reduce or degrade the applicable Support Services. Support Services will terminate upon expiration or termination of the Subscription Period. Any customization, Professional Services, or any other support not included in the Support Services will be subject to a separate agreement and additional fees.
2.4 Security. SourceDay will operate an information security program designed to protect Customer Data utilizing industry standard policies and technologies.
3. ORDERS; PAYMENT
3.1 Orders. The initial Order under this Agreement is as set forth in Schedule A attached hereto. Subsequent purchases of additional SaaS Services will be made by mutual execution of additional Orders. Any contractual terms and conditions, preprinted or otherwise, set forth in a Customer- issued purchase order, will be solely for the purpose of fulfilling Customer’s internal accounting processes and requirements and of no force and effect.
3.2 Affiliate Orders. Customer may allow its Affiliates to use the SaaS Services made available to Customer hereunder for the benefit of Customer and its Affiliates, provided that Customer will be responsible for the acts and omissions of its Affiliates as if such acts and omissions were those of Customer. Customer Affiliates may also order SaaS Services under this Agreement by either of the following methods: (a) pursuant to an Order executed by Customer and SourceDay, in which case Customer will be responsible for such Affiliate’s compliance with the terms and conditions of this Agreement, including payment obligations, or (b) pursuant to an Order executed by such Affiliate and SourceDay under which such Affiliate agrees to the terms and conditions of this Agreement and will be “Customer” for all purposes under this Agreement with respect to such Order only. With respect to any such Order signed by an Affiliate, the relevant Affiliate will be solely liable for its own compliance with the terms and conditions of this Agreement, including payment obligations.
3.3 Fees; Payment Terms. Customer will pay SourceDay the amounts set forth in the Order and any SOW for SaaS Services (“Subscription Fees”) and Professional Services in accordance with the payment schedule set forth therein. Unless otherwise set forth in the Order, payment from Customer is due within 30 days from the date of invoice. In SourceDay’ sole discretion, Customer may be charged a late fee of 1.5% per month (or the maximum rate allowed by applicable law if it is less) on any undisputed amount not paid when due. Except as expressly set forth in this Agreement, all fees are non-refundable and non-cancellable. In the case of multiple Orders for SaaS Services with overlapping Subscription Periods, SourceDay may adjust subsequent Orders to be coterminous with the initial Order Subscription Period and pro-rate Subscription Fees for the initial and end month of the additional Order(s) accordingly. Any disputes regarding payment will be in good faith and reasonably detailed by Customer on or before the due date of the applicable payment in written notice to SourceDay and addressed on an expedited basis by the parties and the undisputed portion of each invoice will be paid when due.
3.4 Reservation of Rights. Notwithstanding anything to the contrary in an Order, SourceDay reserves the right (but is not obligated) to change the Subscription Fees on each anniversary date during the Subscription Period, provided that it will not increase such fees more than five percent per year of the Subscription Period.
3.5 Travel and Incidental Expenses. Customer will reimburse SourceDay for any reasonable out-of-pocket incurred by SourceDay in connection with performing any pre-approved on-site Professional Services at Customer’s location.
3.6 Taxes. SourceDay’ fees do not include any local, state, federal or foreign taxes, levies, or duties of any nature
(collectively, “Taxes”). Customer is responsible for timely paying all applicable Taxes arising from the performance of this Agreement, excluding only taxes based on SourceDay’ income. If SourceDay has 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 SourceDay with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. CUSTOMER OBLIGATIONS
4.1 SaaS Services Use Guidelines. Customer will use the SaaS Services solely as contemplated by this Agreement and will not, and will not authorize any third party to: (a)license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the SaaS Services available to any third party other than Customer’s Affiliates or Suppliers’ Authorized Users; (b)decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of any of the software or systems comprising the SaaS Services; (c) copy any portion of the SaaS Services except as expressly provided herein; (d)modify, alter or create any derivative works of the SaaS Services or Documentation provided or made available by SourceDay hereunder; (e)send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (f)send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (g)send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (h)interfere with or disrupt the integrity or performance of the SaaS Services; (i) use the SaaS Services in violation of any applicable laws or regulations (including any export laws, restrictions, national security controls and regulations); (j) use the SaaS Services to directly or indirectly engage, or participate, in any business or enterprise in competition with, the SaaS Services; or (k)attempt to gain unauthorized access to the SaaS Services or related systems or networks.
4.2 Account Activity. Customer will: (a)maintain the security and confidentiality of Authorized User accounts, access codes, passwords, connectivity standards and protocols necessary for Customer’s access to the SaaS Services and (b)use commercially reasonable efforts to prevent unauthorized access to, or use of, the SaaS Services. Customer is
responsible for Authorized Users’ and its Affiliates’ compliance with this Agreement. Customer will immediately notify SourceDay of any: (i) unauthorized account access or use or other suspected security breach of which Customer is aware; and/or (ii) unusual performance of the SaaS Services observed by Customer. Customer is responsible for, and for notifying SourceDay of assigned Authorized User accounts that need to be terminated. Customer is also responsible for protecting and backing- up the data in Customer’s ERP System that is created, used, stored and/or transmitted in connection with the use of the SaaS Services.
responsible for Authorized Users’ and its Affiliates’ compliance with this Agreement. Customer will immediately notify SourceDay of any: (i) unauthorized account access or use or other suspected security breach of which Customer is aware; and/or (ii) unusual performance of the SaaS Services observed by Customer. Customer is responsible for, and for notifying SourceDay of assigned Authorized User accounts that need to be terminated. Customer is also responsible for protecting and backing- up the data in Customer’s ERP System that is created, used, stored and/or transmitted in connection with the use of the SaaS Services.
4.3 System Administrator. Customer will provide SourceDay contact information for Customer’s system administrator, who is authorized to provide the information required to configure and manage the SaaS Services.
4.4 Account Correspondence. Customer agrees that SourceDay may rely on all information provided to SourceDay by the Customer from the Customer designated e-mail addresses. SourceDay may provide all notices, statements, and other communications arising under this Agreement (other than legal notices) to Customer through either e-mail or other method mutually agreed by the parties from time to time.
4.5 Changes to the ERP System. (a) In the event Customer intends to modify, update (including a minor version update), or replace the ERP System (“ERP System Change”), Customer agrees to notify SourceDay as much in advance as reasonably practicable. (b) In the event an ERP System Change requires modifications to the SaaS Services and SourceDay desires to support such ERP System Change, there will be no additional fee for such modifications. (c) In the event an ERP System Change requires modifications to the SaaS Services and SourceDay does not desire to support such ERP System Change at SourceDay’s expense, SourceDay will provide Customer with a fixed fee quote for the modifications to the SaaS Services and estimated schedule required to support the ERP System Change (“ERP System
Change Fee”). If the ERP System Change Fee is equal to or less than one twelfth of the annual Subscription Fees payable by Customer, Customer agrees to pay such fee in advance and SourceDay will complete such modifications. If the ERP System Change Fee is greater than one twelfth of the annual Subscription Fees payable by Customer, Customer may either (i) elect to pay such fee in advance and SourceDay will complete such modifications or (ii) terminate in written notice to SourceDay the applicable Order(s) effective as of commencement of use of the ERP System Change and shall accompany such written notice with payment of any unpaid Subscription Fees corresponding to the remainder of the Subscription Period, if any. In addition, Customer shall receive no refund of or
credit for pre-paid Subscription Fees corresponding to the unused portion of any Subscription Period. (d) In the event SourceDay undertakes modifications to the SaaS Services pursuant to this Section 4.5, the parties acknowledge and agree that there may be a resulting period during which Customer will be unable to use the SaaS Services (“Transition
Period”). Customer will not receive any credit or refund of pre-paid Subscription Fees during the Transition Period provided that SourceDay uses commercially reasonable efforts to minimize such Transition Period.
Period”). Customer will not receive any credit or refund of pre-paid Subscription Fees during the Transition Period provided that SourceDay uses commercially reasonable efforts to minimize such Transition Period.
5. ERP System Change
Upon Customer determining that Customer intends to make an ERP System Change, Customer shall contact SourceDay’s Support Services team and SourceDay will determine the type of ERP System Change and notice required as more particularly set forth in this Section 5 below.
5.1 Minor ERP System Change. “Minor ERP System Change” means an ERP System Change which does not require, as determined by SourceDay in good faith: (i) modification to the SaaS Services’ application code (“Code Change”), (ii) Customer Data migration (“Data Migration”), or (iii) a change to the integration method between the ERP System and SaaS Services used by SourceDay (“Integration Method Change”). In the event of a Minor ERP System Change:
(a.) Customer shall provide not less than sixty (60) days written notice to SourceDay prior to making a Minor ERP System Change;
(b.) Upon receipt of such notice, the parties shall work together to coordinate the Minor ERP System Change, SourceDay will install, validate and test integration of the Minor ERP System Change in Customer’s non-production environment and upgrade the SaaS Services production settings upon Customer’s completion of the Minor ERP System Change; and
(c.) SourceDay will support a Minor ERP System Change up to one time during three year periods running consecutively commencing on the Services Start Date during the Subscription Term including any renewals thereof. The fee for any additional Minor ERP System Changes during any such three year period shall be $2500, to be invoiced upon receipt of the sixty (60) day notice from Customer set forth above.
5.2 Major ERP System Change. In the event of an ERP System Change which SourceDay determines in good faith does not require an App Change or Data Migration, but does require an Integration Method Change (“Major ERP System Change”):
(a.) Customer shall provide not less than ninety (90) days written notice to SourceDay prior to making a Major ERP System Change;
(b.) Upon receipt of such notice, the parties shall work together to coordinate the Major ERP System Change and SourceDay will install, validate and test integration of the Major ERP System Change in Customer’s non-production environment and upgrade the SaaS Services production settings upon Customer’s completion of the Major ERP System Change; and
(c.) The ERP System Change fee for the foregoing Professional Services shall be $5000, to be invoiced upon receipt of the ninety (90) day notice from Customer set forth above.
5.3 ERP System Replacement. In the event Customer’s ERP System Change consists of replacing its ERP System (“ERP System Replacement”) SourceDay may elect in SourceDay’s sole discretion in notice to Customer not to support such ERP System Replacement, and upon transition to the replacement ERP System, as Customer’s sole remedy, Customer may terminate the SaaS Services and receive a prorata refund of pre-paid Subscription Fees corresponding to the unused remainder of the Subscription Term. In the event SourceDay elects to support the ERP System Replacement in notice to Customer:
(a.) Customer shall provide not less than six (6) months written notice to SourceDay prior to making the ERP System Replacement;
(b.) Upon receipt of such notice, the parties shall mutually agree upon and execute a SOW setting forth the ERP System Change fees below, the scope of work, and Customer responsibilities;
(c.) The ERP System Change fee for the foregoing Professional Services shall be $15000, to be invoiced upon receipt of the six (6) month notice set forth above; and
(d.) In the event Customer fails to agree to a SOW for the ERP System Replacement, then upon completion of the ERP System Replacement, SourceDay will cease providing the SaaS Services and terminate all applicable Orders, and Customer shall immediately pay any unpaid Subscription Fees for the remainder of the Subscription Period(s) of all terminated Orders.
5.4 Delays. With respect to any ERP System Change, if SourceDay is unable to complete SourceDay’s responsibilities in completing the the ERP System Change on or prior to the end of the applicable notice period provided by Customer above, Customer will be responsible for any delays caused by Customer, and Customer will not receive any credit or refund of pre-paid Subscription Fees for the period corresponding to the delays caused by Customer during which the SaaS Services are unable to be used by Customer.
6. TERM; TERMINATION
6.1 Term of Agreement. This Agreement will become effective on the Effective Date and will continue thereafter until there have not been any Subscription Periods in effect for a period of one year (“Term”), unless terminated earlier in accordance with the terms of this Agreement.
6.2 Subscription Period. Unless otherwise set forth in an Order, each Subscription Period will commence on the Services Start Date and continue for the period set forth in the applicable Order and the Subscription Period will automatically renew for a term equal to the then- current Subscription Period , unless either party provides written notice of the intent not to renew at least 90 days before the end of the then- current Subscription Period. At the end of each Subscription Period, the applicable Subscription Fees may increase by up to five percent over the preceding year’s Subscription Fees.
6.3 Termination. This Agreement may be terminated: (a) by either party in any breach of this Agreement by the other party and such breach has continued uncured for a period of 30 days after the breaching party is given written notice of such breach; or (b) by either party, effective immediately, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or similar proceedings pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors applies for or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property, is wound up or liquidated, or ceases its business activities.
6.4 Effect of Termination. Upon termination of this Agreement, (a) SourceDay will immediately cease providing any applicable Professional Services, and deactivate and terminate access to the SaaS Services, (b) Customer will within 30 days promptly pay to SourceDay any and all unpaid amounts due under this Agreement, and (c) each party will destroy all Confidential Information of the other party that such party possesses; provided, however, that to the extent that copies of Confidential Information are contained in a party’s backup data storage archives, such party will not be obligated to delete such copies so long as it does not willfully attempt to access such Confidential Information and continues to comply with the confidentiality restrictions set forth herein. Upon Customer’s written request made within sixty (60) days after the effective date of termination, SourceDay will make available to Customer for download a Customer Data in comma separated value (.csv) format along with attachments in their native format, provided Customer has made all payments required under the Agreement. After such 60-day period, SourceDay shall have no obligation to maintain or provide any Customer Data and shall thereafter delete Customer Data in accordance with
SourceDay’s data retention policies. If Customer terminates the Agreement due to an uncured breach by SourceDay under Section 5.3(b), SourceDay will refund to Customer pre- paid Subscription Fees corresponding to the remainder of the Subscription Period(s) after the effective date of termination. If SourceDay terminates the Agreement for Customer’s breach under Section 5.3(b), Customer shall immediately pay any unpaid Subscription Fees for the remainder of the Subscription Period(s) of all terminated Order Forms. In no event shall any termination relieve Customer of the obligation to pay any fees payable to SourceDay for the period prior to the effective date of any termination hereunder. The provisions of Sections 1, 3.2, 3.3, 3.4, 3.5, 3.6, 4.1, 5.4, 6, 7, 8.5, 9, 10 and 11 will survive any termination or expiration of this Agreement.
6.5 Suspension of Service. SourceDay may suspend Customer’s access to and use of the SaaS Services: (a) if SourceDay deems it necessary to prevent or terminate any prohibited use, or (b) upon notice to Customer if Customer commits a material breach of this Agreement including failure to pay fees when due. SourceDay will provide Customer with notice and an opportunity to remedy such violation or threat (including 15 days written notice if Customer is in default of its payment obligations hereunder) before any such suspension unless SourceDay reasonably concludes that Customer’s use of the SaaS Services is causing an immediate, material and ongoing harm to the security, integrity or availability of the SaaS Services. SourceDay will promptly remove such suspension to the applicable SaaS Services once the applicable violation or threat has been resolved. Suspension of SaaS Services will not constitute a termination of the Agreement nor will it relieve Customer of any of Customer’s obligations or liabilities under the Agreement.
7. CONFIDENTIALITY
7.1 Confidential Information. The term “Confidential Information” includes all information, software and data furnished by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether in oral, written, graphic or machine- readable form, and materials, documentation, designs, improvements, formulae, discoveries, inventions, networks, concepts, ideas, technical information and procedures, security related information including SOC 2 reports, ISO reports, information on the design or effectiveness of the implementation of security controls by SourceDay’s third party service providers, legal, financial or business affairs, markets, products, key personnel, suppliers, policies or operational methods, plans for future developments for the business of the Disclosing Party, and all other information disclosed to the Receiving Party by the Disclosing Party that is not readily available to the public, and all copies of the foregoing, that is either designated as proprietary or confidential or, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary or confidential. Notwithstanding the foregoing, this Agreement, all Documentation related to the SaaS Services and all information regarding the performance of the SaaS Services (including availability, uptime, and performance benchmarks) will be deemed to be the Confidential Information of SourceDay regardless of whether they are so marked. In addition, all information provided by Customer to SourceDay, including financial and customer information, will be deemed to be the Confidential Information of Customer regardless of whether they are so marked.
7.2 Non-Confidential Information. Notwithstanding the foregoing, Confidential Information will not include information that: (a) has entered the public domain through no action or failure to act by the Receiving Party; (b) before disclosure hereunder was already lawfully in Receiving Party’s possession without any obligation of confidentiality; (c) subsequent to disclosure hereunder is obtained by the Receiving Party on a non-confidential basis from a third party who has the right to disclose such information to the Receiving Party; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
7.3 Obligation of Non-Disclosure. The Receiving Party agrees (a) not to disclose the Confidential Information of the Disclosing Party to any third parties (except for its subcontractors or professional advisors who are bound by an obligation of confidentiality no less restrictive than this provision), and (b) to use the Confidential Information solely for the purpose of performing its obligations and exercising its rights under this Agreement. The Receiving Party will safeguard the Confidential Information of the Disclosing Party with at least the same degree of care that it utilizes to safeguard its own Confidential Information, but in any event not less than a reasonable degree of care. The Receiving Party will not remove or alter any copyright, trademark, service mark or other proprietary rights notice attached to or included in any Confidential Information furnished by Disclosing Party.
7.4 Return of Confidential Information.
7.5 Authorized Disclosure. If the Receiving Party is compelled by law, regulation, or a court of competent jurisdiction to disclose any of the Disclosing Party’s Confidential Information, to the extent permitted by law, the Receiving Party will promptly notify the Disclosing Party so that it may seek a protective order or other appropriate remedy. The Receiving Party agrees to cooperate at the Disclosing Party’s expense in seeking such order or other remedy. If disclosure is ultimately required, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, exercise reasonable efforts to obtain assurance that it will receive confidential treatment and continue to treat such Confidential Information in accordance with its obligations under this Section. Each party may disclose the terms and conditions of this Agreement: (a) on a confidential basis to legal or financial advisors; (b) pursuant to reports, applications or similar filings submitted to regulatory agencies and governing authorities as required by applicable law; or (c) on a confidential basis in connection with any financing transaction or due diligence inquiry.
7.6 Injunctive Relief. Each party acknowledges that the Disclosing Party would be irreparably harmed if Receiving Party’s obligations under this Agreement are not specifically enforced and that Disclosing Party would not have an adequate remedy at law in the event of an actual or threatened breach hereof. Accordingly, the Disclosing Party is entitled to specific performance, injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of proving irreparable harm or posting bond and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.
7.7 AWS SOC 2 Report. In the event SourceDay discloses to Customer the AWS SOC 2 report such report is deemed Confidential Information and AWS is an intended third party beneficiary of this Agreement solely with respect to such AWS SOC 2 report and has the right to enforce this Agreement with respect to the AWS SOC 2 report as if it were a party hereto.
8. PROPRIETARY RIGHTS
8.1 Ownership. As between SourceDay and Customer, SourceDay owns all right, title, and interest in and to the SaaS Services and the hardware and software used to provide the SaaS Services (including any customizations, modifications, adaptations, interfaces or derivative works that may be developed as a result of the Professional Services set forth in any Order or SOW unless otherwise set forth in such Order or (SOW), the Documentation for the SaaS Services, SourceDay’ Confidential Information, and all intellectual property rights related thereto (“SourceDay IP”). As between Customer and SourceDay, Customer owns all right, title, and interest in and to the Customer Data, Customer’s Confidential Information, and all intellectual property rights related thereto. This Agreement does not grant any right or license to any intellectual property except as expressly provided in this Agreement, and no other right or license is to be implied by or inferred from any provision of this Agreement or by the conduct of the parties.
8.2 Personal Data. The parties acknowledge that use by Customer of the SaaS Services may involve the disclosure in the SaaS Service of certain personally identifiable data such as Supplier email addresses, as defined by applicable law (“Personal Data”). All Personal Data will be considered the exclusive property of Customer, and SourceDay will not use such Personal Data during the Term except for the purposes of (i) providing the SaaS Services to Customer; (ii) assisting in adoption of the SaaS Services by Customer and its Suppliers; and (iii) for outreach to Authorized Users, Suppliers and appropriate Customer personnel concerning product roadmap, product updates, new products and the like. SourceDay will comply with all data protection and privacy laws applicable to its processing of Personal Data, provided that Customer as controller will be responsible for obtaining consent for the provision of such Personal Data to SourceDay and the uses set forth above and will pay any penalties, fines, costs of notifications or other out of pocket costs incurred by SourceDay or Customer associated with the use, misuse, loss, or unauthorized disclosure in violation of law of such Personal Data unless caused by the gross negligence or willful misconduct of SourceDay.
8.3 Customer Data. Customer hereby grants to SourceDay a limited, nonexclusive, royalty-free, license to access and use the Customer Data to (i) provide, perform, improve and enhance the SaaS Services and for other development, diagnostic and corrective purposes in connection with the SaaS Services and other SourceDay offerings and (ii) disclose such data solely in aggregate and anonymized form in connection with the provision and marketing of the SaaS Services. Under no circumstances will any such aggregate data be capable of being re-identified unless it is otherwise public information. Customer is solely responsible for maintaining backups and copies of all Customer Data input into the SaaS Services and has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. No other rights or licenses are granted by Customer except as expressly set forth herein.
8.4 Suggestions. To the extent that Customer submits to SourceDay any suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the SaaS Services (“Suggestions”), Customer hereby grants SourceDay a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license to freely use, disclose, and otherwise exploit such Suggestions, including by incorporating the Suggestions into future versions of the SaaS Services.
8.5 No Exclusivity. Customer acknowledges that SourceDay is in the business of providing development and other services to other customers, and that SourceDay will have the right to provide to third parties services which are the same as or similar to the SaaS Services and Professional Services provided to Customer pursuant to this Agreement or a SOW, and to use or otherwise exploit any SourceDay IP in providing such services. In addition, Customer acknowledges that SourceDay will be free to use and employ its general skills, know-how, and expertise, and to use and employ any generalized ideas, concepts, know- how, or expertise gained during the provision of Professional Services hereunder, so long as SourceDay acquires and applies such items without disclosure of any Customer Confidential Information.
9. WARRANTIES
9.1 Mutual Warranties. Each party represents and warrants to the other party that (a) it has the right to enter into this Agreement and to perform its obligations hereunder, and (b) the execution, delivery and performance of this Agreement does not conflict in any material respect with or constitute a material breach or default of any organizational document, agreement or other writing to which it is a party.
9.2 Performance Warranty. SourceDay warrants that the SaaS Services will substantially perform the functions described in the then current Documentation for the SaaS Services. This warranty does not apply if the SaaS Services are not administered in accordance with the applicable instructions and training provided by SourceDay. If the SaaS Services fail to operate as warranted in this Section 8.2 and Customer notifies SourceDay in writing of the nature of the non- conformance (“Notice”), SourceDay will make commercially reasonable efforts to promptly repair or replace the non-conforming SaaS Services without charge. If, after a reasonable opportunity to cure, SourceDay does not remedy the non-conformance, Customer may no later than 60 days after giving the Notice terminate the Agreement and receive a refund of the prepaid Subscription Fees for the period following the date of termination. The foregoing provides
Customer’s exclusive remedy, and SourceDay’ exclusive obligation and liability, for breach of the warranty in this Section 8.2.
9.3 Professional Services Warranty. SourceDay will perform the Professional Services in a professional and workmanlike manner, and SourceDay’ personnel will have sufficient skill, knowledge, and training to perform the Professional Services. Customer’s exclusive remedy, and SourceDay’ exclusive obligation and liability, for SourceDay’ breach of the warranty in this Section 8.3 will be SourceDay’ reasonable commercial efforts, at no additional charge, to remedy any Professional Services performed in a manner that is substantially less than workmanlike or to replace personnel with insufficient skill, knowledge, and training with qualified personnel for performance of the Professional Services.
9.4 Customer Representations and Warranties. Customer represents and warrants that (a) Customer has the
right to furnish all Customer Data to SourceDay; and (b) Customer will comply with all laws and regulations applicable to Customer’s use of the SaaS Services and provision of the Customer Data to SourceDay.
9.5 Disclaimer of Implied Warranties. CUSTOMER ASSUMES FULL RESPONSIBILITY FOR CUSTOMER’S
AND SUPPLIERS’ USE OF THE SAAS SERVICES. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SOURCEDAY MAKES NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SAAS SERVICES, THE PROFESSIONAL SERVICES, THE SUPPORT SERVICES, OR THIS AGREEMENT, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR ALL ACTIONS CUSTOMER TAKES (OR ACTIONS CUSTOMER FAISL TO TAKE/OMISSIONS CUSTOMER MAKES) BASED ON ANY INFORMATION, INCLUDING WITHOUT LIMITATION, REPORTS, GUIDANCE, SUGGESTIONS OR RECOMMENDATIONS CUSTOMER RECEIVE FROM SOURCEDAY AND/OR THE SAAS SERVICES. Customer acknowledges and agrees that neither SourceDay nor its suppliers operates or controls the Internet and that: (a) viruses, worms, Trojan horses, or other undesirable data or software exist; and (b) unauthorized users (e.g., hackers) may attempt to obtain access to Customer Data, web site, computers, or networks. SourceDay uses reasonable efforts (including firewalls) consistent with industry standards to protect the SaaS Services from such unauthorized use, but subject to the foregoing, SourceDay is not responsible for issues related to acts or omissions of third parties. SourceDay shall not be liable for any loss of, or failure to recover, Customer Data, caused by Customer’s failure to back-up Customer Data on a periodic basis.
10. INDEMNIFICATION
10.1 SourceDay Indemnity. SourceDay will defend any action brought against Customer to the extent that it is based upon a third party claim (a) that the SaaS Services, as provided by SourceDay to Customer under this Agreement and used within the scope of this Agreement, infringe or misappropriate any U.S. patent, copyright or trade secret or violates any other intellectual property right of a third party, and/or (b) arising from the willful misconduct or fraud of SourceDay, and SourceDay will indemnify Customer from the costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer or agreed upon by SourceDay in settlement.
10.2 Injunction. If Customer’s use of any of the SaaS Services hereunder is, or in SourceDay’ opinion is likely to be, enjoined due to the type of infringement specified in Section 9.1 above, or if a claim is brought against Customer due to the type of infringement specified in Section 9.1 above, then SourceDay may, at its sole option and expense: (a) procure for Customer the right to continue using such SaaS Services under the terms of this Agreement; (b) replace or modify such SaaS Services so that they are non-infringing and substantially equivalent or better in function to the enjoined SaaS Services; or (c) if options (a) and (b) above cannot be accomplished despite SourceDay’ commercially reasonable efforts, then SourceDay may terminate Customer’s rights and SourceDay’ obligations hereunder with respect to such SaaS Services and remit to Customer any pre-paid Subscription Fees for the remainder of the Term after the termination.
10.3 Exclusions. Notwithstanding the terms of Section 9.1 above, SourceDay will have no liability for any infringement or misappropriation claim of any kind to the extent it results from: (a) information, design, specification, instruction, software, data, or material furnished by or on behalf of Customer; (b) modification or alteration of the SaaS Services not made by or for SourceDay, if infringement would have been avoided by the absence of the modifications; (c) the combination, operation or use of the SaaS Services with equipment, devices, software or data (including Customer Data) not supplied by SourceDay, if infringement would not have occurred but for such combination, operation or use; (d) use of the SaaS Services in violation of the applicable Documentation; (e) Customer’s continuing such allegedly infringing activity after being informed by SourceDay and provided, at no additional charge, with modifications that would have avoided the alleged infringement and reasonable time to implement such modifications; or (f) Customer’s or an Authorized User’s use of the SaaS Services in breach of this Agreement. Sections 9.1 – 9.3 set forth SourceDay’ exclusive obligations and liabilities, and Customer’s exclusive remedies, with respect to infringement of intellectual property rights under or in connection with this Agreement.
10.4 Customer Indemnity. Customer will defend any action brought against SourceDay to the extent that it is based upon a claim (a) that the Customer Data, as provided by Customer to SourceDay under this Agreement and used within the scope of this Agreement, infringes or misappropriates any patent, copyright or trade secret or violates any other intellectual property or other right of a third party or violates applicable law and/or (b) arising from the willful misconduct or fraud of Customer, and Customer will indemnify SourceDay from the costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against SourceDay or agreed upon by Customer in settlement.
10.5 Process. The party seeking to be indemnified will give prompt written notice to the other party of the claim against which it seeks to be indemnified and will provide the indemnifying party, at the indemnifying party’s expense, with the assistance reasonably necessary for the defense and settlement of the claim. The failure by the indemnified party to timely furnish to the indemnifying party any notice required to be furnished under this Section 9 will not relieve the indemnifying party of its obligations under this Section 9, except to the extent such failure materially and adversely prejudices the ability of the indemnifying party to defend such claim. The indemnifying party will have control of the defense and settlement of any such claim. The indemnifying party will not be liable for any settlement of an action effected without its written consent, which consent will not be unreasonably withheld or delayed. The indemnifying party will not settle any claim without the indemnified party’s prior written consent, which consent will not be unreasonably withheld or delayed, unless the settlement unconditionally releases the indemnified party of all liability. The indemnified party may engage counsel of its choice at its own expense.
11. LIMITATIONS ON LIABILITY
11.1 EXCEPT FOR A GROSSLY NEGLIGENT, RECKLESS, OR WILFUL BREACH BY A PARTY, IN NO EVENT WILL SUCH PARTY BE LIABLE FOR (A) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA (INCLUDING ANY CUSTOMER DATA) OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFIT, LOSS OF BUSINESS OR LOSS OF GOODWILL INCURRED BY A PARTY; OR (C) FOR ANY FORCE MAJEURE EVENTS WHICH ARE BEYOND A PARTY’S REASONABLE CONTROL EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATING TO THE SAAS SERVICES, THE PROFESSIONAL SERVICES, THE SUPPORT SERVICES, OR THIS AGREEMENT.
11.2 EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, CUSTOMER’S PAYMENT OBLIGATIONS
HEREUNDER, OR FOR A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE SAAS
SERVICES, THE PROFESSIONAL SERVICES, THE SUPPORT SERVICES OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO SOURCEDAY FOR THE SAAS SERVICES DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE FIRST CLAIM UNDER THIS AGREEMENT, EXCEPT THAT SOURCEDAY’ LIABILITY TO CUSTOMER, REGARDLESS OF THE FORM OF ACTION, ARISING OUT OF A BREACH OF CONFIDENTIALITY OR A BREACH OF SECURITY OBLIGATIONS HEREUNDER (INCLUDING ANY INDEMNIFICATION OBLIGATIONS THEREFOR) WILL BE LIMITED TO THE MAXIMUM AMOUNT AVAILABLE UNDER SOURCEDAY’ INSURANCE. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. NOTHING IN THIS AGREEMENT WILL LIMIT A PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY SUCH PARTY’S NEGLIGENCE OR A PARTY’S LIABILITY FOR FRAUD. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION 10 REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE
LIMITATIONS OF LIABILITY.
12. MISCELLANEOUS
12.1 Force Majeure. Neither party will be liable under this Agreement for any failure, deficiency or delay in the
performance of its obligations under this Agreement due to any force majeure event, including natural catastrophe, fire, explosion, electrical or communication line failure, disturbance, war or military action, acts of terrorism, epidemic, pandemic, government acts, orders, or regulation, equipment failure, or any cause or matter whatsoever not within the
reasonable control of such party. In the event of such a force majeure, the affected party will be entitled to a reasonable extension of time for the performance of its obligations under this Agreement. If the force majeure event continues for more than 60 calendar days, then either party may terminate the Agreement upon written notice to the other party.
performance of its obligations under this Agreement due to any force majeure event, including natural catastrophe, fire, explosion, electrical or communication line failure, disturbance, war or military action, acts of terrorism, epidemic, pandemic, government acts, orders, or regulation, equipment failure, or any cause or matter whatsoever not within the
reasonable control of such party. In the event of such a force majeure, the affected party will be entitled to a reasonable extension of time for the performance of its obligations under this Agreement. If the force majeure event continues for more than 60 calendar days, then either party may terminate the Agreement upon written notice to the other party.
12.2 Publicity. SourceDay may identify Customer as a customer on its website using Customer’s name and logo and
include Customer in a customer list during prospective customer presentations and the like.
12.3 Promotion and Press Release: Customer or SourceDay may each issue one press release on or before 30 days after an Order Effective Date. In either case, the press release will be mutually approved before release and such approval will not be unreasonably withheld, conditioned or delayed. 11.4 Waiver . No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. A waiver by a party of any
provision of this Agreement in any one instance will not be deemed or construed to be a waiver of such provision for any similar instance in the future or of any subsequent breach.
12.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. The parties agree to negotiate in good faith an enforceable substitute provision for any invalid or unenforceable provision that most nearly achieves the intent and economic effect of such provision.
12.6 Assignment. This Agreement will be binding upon and be enforceable by and against the parties hereto and, to
the extent permitted hereby, their respective successors and assigns. This Agreement is not transferable or assignable by either party, in whole or in part, without the prior written consent of the other party, which consent will not be unreasonably withheld. Provided, however, either party may, without the other party’s consent, assign or transfer all or part of this Agreement to any Affiliate or to any successor-in-interest to all or substantially all the business or assets of the assigning party pertaining to the subject matter hereof, whether voluntarily or by merger, reorganization, asset sale, or otherwise. Any attempted assignment in violation of this Section will be null and void.
12.7 Independent Contractors. The relationship between the parties created by this Agreement is that of independent contractors and neither party will have any authority to create any obligation on behalf of the other.
12.8 Governing Law; Jurisdiction. ThisAgreement will be governed by and construed in accordance with the laws of the State of Texas, without reference to conflict of laws principles. Each party irrevocably submits to venue and exclusive personal jurisdiction in the federal and state courts in Austin, Travis County, Texas, for any disputes or claims arising out of this Agreement and waives all objections to jurisdiction and venue of such courts; provided that nothing in this Section will restrict either party from seeking injunctive relief in a forum of its choice. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
12.9 Anti-Corruption Laws. Each party is subject to various anti-bribery statutes in the U.S. and around the globe, including the U.S. Foreign Corrupt Practices Act. Each party represents and warrants in connection with its performance under this Agreement that it (a) has not done and will not do anything to violate these laws and other related laws in the applicable jurisdictions, and (b) has implemented its own anti-corruption policy and will take appropriate, risk-based procedures to abide by its anti- corruption policy for the term of this Agreement.
12.10 Compliance with Laws. Each of SourceDay and Customer will comply with all applicable export laws, restrictions, and regulations of the United States or foreign agency or authority. Customer will not use the SaaS Services, or allow the transfer, transmission, export, or re-export of the SaaS Services or portion thereof, in violation of any export control laws or regulations administered by the U.S. Department of Commerce, OFAC, or any other government agency or authority. Customer will obtain and bear all expenses relating to any necessary licenses or exemptions with respect to the export from the U.S. of the SaaS Services to any location so as to be in compliance with all applicable laws and regulations. By signing this Agreement, Customer confirms that Customer is not a resident or citizen of any country currently embargoed by the U.S. and that Customer is not otherwise prohibited from receiving the SaaS Services.
12.11 Language. This Agreement is in the English language only, which language will be controlling in all respects, and all versions hereof in any other language will not be binding on the parties hereto.
12.12 Notice. Notice to either party will be sent to the address shown on the first page of this Agreement. All notices will be sent by certified mail or nationally recognized overnight courier service.
12.13 Construction. The headings of Sections of this Agreement are included solely for convenience of reference and are not to be used to interpret, construe, define, or describe the scope of any aspect of this Agreement. The terms “include,” “including,” “includes” and similar terms mean “including, without limitation.” Each party represents that it has had the opportunity to participate in the preparation of this Agreement, and any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of this Agreement. Unless otherwise expressly stated to the contrary herein, all remedies are cumulative and the exercise of any express remedy by either party does not by itself waive such party’s right to exercise its other rights and remedies available at law or in equity.
12.14 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which taken together will constitute one single agreement between the parties. This signed Agreement or counterparts may be exchanged electronically or stored electronically as a photocopy (such as in .pdf format). The parties agree that electronically exchanged or stored copies will be enforceable as original documents and consent to the use of electronic and/or digital signatures for the execution of this Agreement and further agree the use of electronic and/or digital signatures will be binding, enforceable and admissible into evidence in any dispute regarding this Agreement.
12.15 Order of Precedence. To the extent there is a conflict between the terms in the main text of this Agreement and any terms in the Order and the other referenced documents, then the following precedence will apply: (1) the Order; (2) the main text of the Agreement; and (3) the other referenced documents.
12.16 Entire Agreement. This Agreement (together with the Orders, the SOWs and the Schedules referenced herein) contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all previous and contemporaneous agreements and understandings, whether oral or written, between the parties with respect to the subject matter hereof. All amendments and modifications to, or waivers of any provisions of, this Agreement must be in writing, signed by the duly authorized officers of both parties.
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