SOFTWARE AS A SERVICE AGREEMENT
THIS SOFTWARE AS A SERVICE AGREEMENT (the “Agreement”) is executed as of the date last shown on the signature page hereto (the “Effective Date”) by and between Seqwens, an Ohio limited liability company (“Provider”), and the party counter-signing this agreement (“Customer” and together with Provider, each a “Party” and collectively, the “Parties”).
STATEMENT OF AGREEMENT
In consideration of the mutual covenants, agreements, and obligations set forth in this Agreement, the Parties agree as follows:
- “Application” means Provider’s proprietary web-based tax practice management software, as more fully identified on an applicable Service Order.
- “Commencement Date” is the date that Service availability will begin and start of the Term, as defined herein. The Commencement Date shall be as shown on the Service Order.
- “Customer Data” refers to data in electronic form (i) input by or collected from Customer or Customer’s tax clients (each a “Tax Client”) through or in connection with the Service, including Tax Client personal data, or (ii) generated by Provider or the Service from data submitted by or on behalf of Customer.
- “Intellectual Property Rights” means any and all registered or unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.
- “Materials” means the Application, all specifications, documentation, and any and all other information, data, materials, works, services, content, images, devices, methods, processes, hardware, software, technologies, inventions, source code, and any other aspect of the Service, including any deliverables, technical or functional descriptions, requirements, plans or reports that are provided by or used by Provider in connection with the Service or otherwise comprise or relate to the Service or the Application. The foregoing notwithstanding, Materials shall not include Customer Data.
- “Permitted Users” means any employee of Customer that is granted user access credentials to access the Service.
- “Professional Services” means any ancillary services performed by Provider in connection with the Application subscription granted hereunder, including, without limitation, interface development, white-label website customization, software customization and training services, all as specifically set forth in the applicable Service Order.
- “Service” means collectively, Provider’s Application and any Professional Services, as further described on the applicable Service Order.
- “Service Order” means the detailed statements of Service(s) to be provided hereunder and the related fees, and other details as agreed upon by the Parties, in substantially the form attached hereto as Exhibit A. Further engagements between Provider and Customer by this Agreement will have service, payment details and other deal-specific terms set forth on an additional Service Order. Each Service Order, when executed by each party hereto, shall be incorporated herein. If any conflict exists between any term of this Agreement and any term contained in a Service Order, the terms in this Agreement shall govern, unless the Service Order specifically references such conflict and indicates the parties’ intent that the conflicting term in the Service Order shall govern, in which case the Service Order shall govern as to such referenced conflict only.
- “Term” means the Initial Term (defined below), as extended by any Additional Terms (defined below) in accordance with the terms of this Agreement.
- Service Subscription.
- Grant. Provider hereby grants to Customer and its Permitted Users a nonexclusive subscription right to use the Service during the Term for Customer’s own business purposes by integrating it into Customer’s own website for the purpose of utilizing the Service to schedule new patients. Nothing in this Agreement shall in any way limit the ability of Provider to offer access to and use of the Service to any other party.
- Limitations on Subscription. Customer shall not be granted any rights to the Service beyond that which is specifically provided for herein. Customer acknowledges that at no time shall it be entitled to download, distribute, install, transfer, or otherwise redistribute the Application in any form not explicitly covered by this Agreement. At no time will Customer hold title to or ownership of the Service, any component of the Application, or source code or any Materials provided to Customer during the term of this Agreement.
- Initial Professional Services. Provider shall provide to Customer the Professional Services, as applicable, in accordance with the time schedule set forth in the Applicable Service Order.
- License. Provider has developed code in order to integrate the Application’s functionality into the Customer own back-office software (Background Code”). To the extent necessary for Provider’s code to be locally installed on any Customer device or server, during the term of this Agreement, Customer is granted a non-exclusive, non-transferable, fully paid license for the sole purpose of integration with or installation of the Background Code. Following the termination of this Agreement, Customer shall cease all use of the such Background Code.
- Payment Processing Services. The application allows for payment collection tool senabled by Stripe. Customer agrees to the additional payment processing terms set forth on Exhibit B, which are hereby incorporated by reference.
- Materials, Software, & Intellectual Property.
- Intellectual Property in General. Provider retains all right, title, and interest in and to the Service, including all copies thereof in any form or medium, whether now known or existing or hereafter developed, and further including, without limitation, all software and code used to provide the Service and copyrights, patents, trade secrets, trademarks or trade names therein or created thereby, and this Agreement does not grant Customer any Intellectual Property Rights in or to the Service or any of its components.
- Materials. Without limiting the foregoing, Customer recognizes and agrees that: (i) the Materials are the property of Provider or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) Customer does not acquire any Intellectual Property Rights, or any other right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Customer’s use of the Service. Customer acknowledges that it will not have any access to the Service or Application after the termination of this Agreement.
- Customer may provide comments, suggestions and feedback to Provider regarding the Services (“Comments“). The ownership right, title, and interest in such Comments will vest in Provider on provision of the Comments, and the Customer must promptly do any acts reasonably requested by Provider for the Intellectual Property Rights in the Foreground Material to vest in Provider.
- Intellectual Property Rights created as a result of Professional Services (“Foreground Material”) will vest in Provider upon creation and the Customer must promptly do any acts reasonably requested by Provider for the Intellectual Property Rights in the Foreground Material to vest in Provider.
- Notwithstanding the aforementioned, to the extent that the ownership of any Comments or Foreground Material cannot be assigned by Customer, Customer grants us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, prepare derivative works, and otherwise fully exploit such Comments in any medium or format, whether now known or later developed, provided that such Comments are anonymous.
- Provider Hosting Obligations. Provider shall, at its own expense, maintain the Service on one or more computer network servers (any such servers, collectively, the “Application Server”). Provider shall bear sole responsibility for the operation and maintenance of the Application Server hardware, its operating system and/or its platform software, and any third-party application software associated with, or necessary for, the operation and functioning of the Application Server in accordance with this Agreement. Provider shall be permitted to enter into an arrangement with one or more third parties (each, a “Third Party Host”) for the performance of Provider’s obligations under this Section 4, whereby any such Third Party Host may install the Application, own, operate or maintain the Application Server, or undertake to manage the Application Server.
- Security; Disaster Recovery; HIPAA.
- Security. At all times during the Term, Provider shall be responsible for the security of the Service, Materials and Customer Data maintained within the Application. Provider shall make reasonable commercial efforts to provide physical and information security standards in connection with the Service that meets generally accepted industry standards for physical and information security.
- HIPAA Compliance. In connection with providing services hereunder, the Parties have entered into a Business Associate Agreement in a form mutually agreeable to the Parties.
- Term and Renewal. The initial term of this Agreement shall begin as of the Commencement Date and, unless sooner terminated pursuant to the provisions of Section 8, shall be in effect for one (1) year (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional one (1) year terms (each, an “Additional Term”) unless either Party gives written notice to the other of its intention not to renew at least thirty (30) days prior to the end of the then-current term.
- Payment Provisions.
- Payment Amounts. As consideration for Provider’s performance under this Agreement, Customer shall pay to Provider the amounts set forth on the applicable Service Order. The fees charged for the Service are subject to increase by Provider on an annual basis, but not to exceed seven percent (7%).
- Payments. Payments will be billed to Customer in U.S. dollars, or other currencies which may be made available (plus any and all applicable taxes, including without limitation VAT and GST), as shown in the Service Order, and Customer’s account will be debited when Customer executes this Agreement and provides payment information. Payment must be made with one of the following:
- A valid credit/debit card acceptable to Provider; or
- By another payment option approved by Provider.
- Current Information. If payment and registration information is not accurate, current, and complete and Customer fails to notify Provider promptly when such information changes, Provider may suspend or terminate Customer’s account and refuse any use of the Services. If Customer does not notify Provider of updates to Customer’s payment method (e.g., credit card expiration date), to avoid interruption of the Services, Provider may participate in programs supported by Customer’s card provider (e.g., updater services, recurring billing programs, etc.) to try to update Customer’s payment information, and Customer hereby authorizes Provider to continue billing Customer’s account with the updated information so obtained.
- Renewal. The Services will automatically renew Customer’s monthly, quarterly, or annual Services (as indicated on the Service Order) at the then-current rates in accordance with this Agreement, unless the Services subscription is cancelled or terminated under this Agreement.
- No Refunds. All payments made hereunder are non-refundable and will not be returned to Customer in any event.
- Late Payments. Any payment owed by Customer not paid within the timeframe set forth above will accrue interest at the lower of (i) 12% annually, or (ii) the highest rate permitted by applicable law. Provider shall have the right to suspend access to the Service if Customer has not cleared a delinquent payment within five (5) days after notice from Provider that such payment has not been received.
- Taxes. All amounts payable hereunder shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Customer will be responsible for payment of all such taxes, fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights in the Application to Customer, or the delivery of related services.
- Mutual Termination Rights. This Agreement shall terminate (i) at the end of the current Term, (ii) after proper notice given by a terminating Party pursuant to this Section 8, or (iii) at any time upon mutual agreement in writing by Provider and Customer.
- Termination by Provider. Provider may terminate this Agreement by sending written notice to Customer upon the occurrence of any of the following events:
- Following notification by Provider of a late payment due under Section 7, Customer fails to make a payment within 15 days thereafter;
- Customer fails to comply with any term of this Agreement within 15 days following notification by Provider of such failure to comply; or
- Appointment of a receiver or the filing of any application by Customer seeking relief from creditors.
- Effects of Termination. Upon the termination of this Agreement for any reason, Customer shall immediately cease using the Service, delete any Provider Code integrated into Customer’s website, and shall return or destroy all Materials. No refunds for fees paid hereunder shall be made for any reason. Customer Data following termination shall be treated as set forth in Section 13(a).
- Survival. The following provisions will survive termination of this Agreement: (i) any obligation of Customer to pay any fees incurred hereunder prior to termination; (ii) Sections 2(d), 3, 5(c), 7, 8(d), 9, 10, 11, 13 and 16 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
- Customer Duties.
- Cooperation. Customer agrees to provide reasonable access to users for questions, feedback, testimonials, and other publications Provider may desire.
- Restriction of Access. Customer shall restrict access to the Service to Customer’s Permitted Users and ensure compliance by all Permitted Users with the Acceptable Use Policy. Customer shall promptly report to Provider any known violation of the Acceptable Use Policy by its Permitted Users or any access to the Service by anyone other than a Permitted User.
- Customer Control and Responsibility. Customer has and will retain sole responsibility for: (i) all Customer Data, including its content and use; (ii) all information, instructions and materials provided by or on behalf of Customer or a Permitted User in connection with the Service; (iii) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (the “Customer Systems”); (iv) the security and use of Customer’s and its Permitted Users’ access credentials; (v) all access to and use of the Service and Materials directly or indirectly by or through the Customer Systems or its or its Permitted Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from and all conclusions, decisions and actions based on such access or use; and (vi) booking appointments within one (1) day of when patients utilize the Service via the Customer’s website to book an appointment with Customer.
- Non-Solicitation. During the Term and for a period of twelve (12) months thereafter, Customer shall not, and shall not assist any other person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any person) for employment or engagement as an independent contractor any person then employed or engaged by Provider. In the event of a violation of this Section 9(d), Provider will be entitled to liquidated damages equal to one-year of salary of such individual (based on the highest salary in the last three years). The Parties acknowledge and agree that any breach of this Section 9(d) will cause injury to Provider for which money damages would be inherently difficult to quantify or ascertain and further stipulate that the agreed upon sum is not a penalty, but rather a reasonable measure of damages. Notwithstanding the foregoing, Customer shall not have any liability under this Section 9(d) in the event such hire was the result of a general solicitation through the public domain.
- Acceptable Use Policy. The obligations set forth in this Section constitute the “Acceptable Use Policy” with respect to use of the Application by Customer and any Permitted Users.
- Acceptable Use. Customer is solely responsible for the content of any postings, data, or transmissions using the Services, or any other use of the Services by Customer or by any person or entity that accesses the Service through Customer’s systems, whether or not such person or entity is a Permitted User. Customer shall not, and shall not permit any other party to, or attempt to: (i) use the Services in a manner that: (A) is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; or (B) will disrupt a third parties’ similar use or licensed materials; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Application is compiled or interpreted; (iii) violate or tamper with the security of the Service or the Materials; (iv) modify the Application or Materials or create any derivative product or service from any of the foregoing; (v) or act as a service bureau of the Service or otherwise run the Application or access the Service or Materials for any unlicensed third party.
- Compliance. In the event of Customer’s material breach of the Acceptable Use Policy, including without limitation any copyright infringement, Provider may suspend or terminate Customer’s access to the Service, in addition to such other remedies as Provider may have at law or pursuant to this Agreement. Neither this Agreement nor the Acceptable Use Policy require that Provider take any action against Customer or any other Customer for violating the Acceptable Use Policy, but Provider is free to take any such action it sees fit.
- Reciprocal Disclosure of Confidential Information. The Parties anticipate that each may disclose confidential information to the other. Accordingly, the Parties desire to establish in this Section terms governing the use and protection of certain information one Party (“Disclosing Party”) may disclose to the other Party (“Recipient”), in addition to those restrictions found in Section 5(c) above.
- For purposes hereof, “Confidential Information” means the terms and conditions hereof, and other information of an Disclosing Party (i) which relates to Service, including the Materials or Customer Data, as applicable, business models and plans, and technical information and data of Disclosing Party or its Customers or suppliers, (ii) which, although not related to the Service, is nevertheless disclosed hereunder, and which, in any case, is disclosed by an Disclosing Party or an affiliate to Recipient in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Recipient within fifteen (15) days of the initial disclosure, (iii) any other information which a reasonable person would deem confidential under the context of disclosure or due to the nature of the information disclosed, or (iv) any information discerned from, based on, relating to, or containing any of the foregoing which may be prepared by Recipient (collectively “Notes”).
- Recipient may use Confidential Information of Disclosing Party only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Agreement and only to its employees, consultants or representatives (collectively, “Representatives”) who have a need to know for such purposes and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure. Recipient shall ensure compliance with this Agreement by all of its Representatives, and will be responsible for any breach of this Agreement caused by its Representatives.
- The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Disclosing Party; or (iv) is independently developed by Recipient without reference to Confidential Information.
- Recipient further agrees that it shall:
- immediately notify Disclosing Party of any breach of this Agreement or any other disclosure of Confidential Information not authorized under this Agreement (collectively, an “Unauthorized Disclosure”); and
- without limiting any remedies available to Disclosing Party, fully cooperate with the Disclosing Party to regain possession of the Confidential Information, prevent its further unauthorized use or disclosure, and limit and mitigate the damage of such Unauthorized Disclosure.
- If Recipient or any of its Representatives is required by a valid legal order to disclose any Confidential Information, Recipient shall notify Disclosing Party of such requirements so that Disclosing Party may seek, at Disclosing Party’s expense, a protective order or other remedy, and Recipient shall reasonably assist Disclosing Party therewith. If Recipient remains, in the opinion of counsel reasonably acceptable to Disclosing Party, legally compelled to make such disclosure, it shall: (a) only disclose that portion of the Confidential Information that it is required to disclose; and (b) use reasonable efforts to ensure that such Confidential Information is afforded confidential treatment.
- Following the termination of this Agreement, Recipient shall (a) at Disclosing Party’s discretion, promptly return to Disclosing Party or destroy all Confidential Information in its and its Representatives’ possession other than Notes, (b) destroy all Notes, and (c) within 10 days after Disclosing Party’s request, provide Disclosing Party with a certificate confirming Recipient’s compliance with this Section 11. Notwithstanding the foregoing, Recipient may retain copies of Confidential Information that are stored on Recipient’s IT backup and disaster recovery systems until deleted in the ordinary course. Recipient shall continue to be bound by the terms and conditions of this Agreement with respect to such retained Confidential Information.
- Provider utilizes a third-party server host to provide the Services, whose security policies are available upon request by Customer. Provider’s use of such host is in compliance with Provider’s obligations set forth in this Section 11.
- Representations and Warranties.
- Representations and Warranties Generally. Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; (iii) that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; and (iv) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
- Representations and Warranties of Customer. Customer further represents and warrants (i) that it has the right to disclose and provide to Provider any data provided through use and access of the Application; and (ii) that Customer’s use of and access to the Application complies with applicable laws and regulations.
- Disclaimer. Except for the express warranties specified herein, the Service is provided “as is” and “as available”, and Provider makes no warranties, either express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, non-infringement or data accuracy. Provider does not warrant that the operation of the Application will be uninterrupted or error-free, or that all errors will be corrected.
- Limitations and Exclusions of Liability. Other than instances of gross negligence, or willfully malicious conduct, neither Party will be liable to the other for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation, or liabilities to third parties arising from any source, even if a Party has been advised of the possibility of such damages. This limitation upon damages and claims is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective. The cumulative liability of Provider to Customer for all claims arising from or relating to this Agreement, including, without limitation, any cause of action sounding in contract, tort, or strict liability, will not exceed the total amount of all license fees paid to Provider by Customer during the 12 months prior to the event leading to liability of a Party under this This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.
- Essential Basis of the Agreement. Each Party acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 12 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
- Indemnification by Customer. If a third-party brings any claim, suit, or action (collectively (“Third Party Actions”), arising out of, or related to, or based on (i) Customer’s breach of this Agreement, or (ii) the use of the Service in violation of the Acceptable Use Policy either by a Permitted User or by any third-party end-user under the credentials provided to a Permitted User, Customer will defend, indemnify and hold harmless Provider, its licensors, service providers, and their respective affiliates, managers, agents and employees, from and against such Third-Party Actions, and all related losses, costs, and expenses, including reasonable attorneys’ fees,
- Notice and Defense of Claims. With respect to a claim entitled to indemnification under Section 13(a) above, a Party seeking indemnification under this Section 13 (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) of any claim for which it believes it is entitled to indemnification. The Indemnifying Party shall assume control of the defense and settlement of such claim provided that (i) Indemnified Party promptly notifies Indemnifying Party of any such claim in writing (but a failure to do so shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party or the defense is prejudiced by such failure), (ii) the Indemnifying Party is given sole control over the defense and settlement of such claim at its sole cost and expense, provided, however, that the Indemnifying Party will not settle any third-party claim against the Indemnified Party unless such settlement completely and forever releases the Indemnified Party from all liability with respect to such claim without payment or admission of fault by the Indemnified Party, unless the Indemnified Party consents to such settlement, and that (iii) the Indemnified Party will have the right, at its option and expense, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice. For the avoidance of doubt, should the Indemnifying Party refuse the opportunity to have sole control of the defense of the Claims, and should the Indemnified Party be obliged to conduct the same, then any reasonable related attorneys’ fees and costs shall be covered by this Section 13.
- Data Management.
- Access, Use, & Legal Compulsion. Unless it receives Customer’s prior written consent, Provider: (i) will not access or use Customer Data other than as necessary to facilitate the Service; and (ii) will not give any third party access to Customer Data. Notwithstanding the foregoing, Provider may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Provider will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
- Customer’s Rights. Customer possesses and retains all right, title, and interest in and to Customer Data. Notwithstanding the foregoing, Provider reserves the right to retain and utilize non-personal data such as aggregate, summary, de-identified or other usage data, and may include, statistics regarding total users, information regarding types of Internet browsers used by users, and widget usage patterns.
- Retention, Deletion, & Request for Data. Provider is responsible for making internal backups of all data used by or hosted on the Application Servers. Upon termination of this Agreement, Provider will retain all Customer Data in its databases for thirty (30) days following the termination date and shall be delivered upon written request by Customer within that thirty (30) day time frame. After thirty (30) days, such data may be undeliverable. Notwithstanding the foregoing, in no event will Provider be liable to Customer for the loss of or deletion of any Customer Data.
- Notices. All notices by either Party shall be in writing, and shall be sent to the other Party’s Authorized Representative as shown on the Service Order by United States Certified Mail, postage prepaid, return receipt requested or by Federal Express or other similar nationally recognized courier, or by email, and such notices will be deemed effective upon actual receipt or rejection.
- Amendment. This Agreement may not be amended except through a written agreement executed by representatives of each Party. Notwithstanding the foregoing, Provider may amend the Acceptable Use Policy at any time by posting a new version at its website and sending Customer notice thereof.
- Independent Contractors. The Parties are independent contractors and will so represent themselves in all regards. Neither Party is the agent nor partner of the other and neither may bind the other in any way.
- No Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
- Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
- Assignment & Successors. Provider may assign this Agreement or any of its rights or obligations hereunder without express written consent from Customer. Customer may not assign this agreement without the prior consent of Provider, which consent may be withheld by Provider in its sole discretion. Any attempted assignment in violation of this Section 16(e) shall be null and void. This Agreement will be binding upon and inure to the benefit of the respective successors and permitted assigns of the Parties.
- Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Ohio without reference to such State’s principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Franklin County, Ohio.
- Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
- Reference and use of Customer logo. Customer agrees to provide Provider use of its logo and Customer description for marketing material as permitted by law. Additional Customer feedback and input on case studies or marketing material will be provided as reasonably requested by Provider.
- This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
- Entire Agreement. This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither Party has relied upon any such prior or contemporaneous communications.
Signatures on following page.
Signature Page to Software as a Service Agreement
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed below.
An Ohio limited liability company
Schedule of Exhibits
Exhibit A: Service Order
Exhibit B: Payment Processing Terms
2. Professional Services
· End-user training via [#] 1-hour web meeting sessions
· API set-up to communicate with existing software
· Payment Processing
3. Commencement Date:
Subscription $[x] per year
Reservations $[x] per reservation booked
Professional Services $[x] in initial term
Total Initial Payment $[x]
Annual Renewal $[x]
Payment Processing Terms
The terms and conditions described in this Exhibit B relate to processing of payments under the Software as a Service Agreement between Customer (sometimes referred to as “you,” “your”, “user”), Provider (sometimes referred to as “we”, “us” and “our”), to which these terms are attached (the “Agreement”). All capitalized terms used herein, unless otherwise defined, shall have the meaning given to such terms in the Agreement.
- The Processor.The “Processor” is Stripe, Inc., a San Francisco limited liability corporation, which is a technical service provider and may offer the services as an agent of one or more financial institutions in the United States (each, a “Financial Services Provider”). The processing and settlement of your Transactions (as defined below) (“Payment Processing”) are carried out by the Processor and any of the Financial Services Providers under a separate Stripe Connected Account Agreement, including the United States Terms of Service and the applicable Financial Services Terms (collectively, the “Processor Terms”). By accepting this Agreement, you are also accepting and agreeing to be bound by the Processor Terms which are a legal agreement between you and the Processor.”
Provider is not a party to the Processor Terms and is not liable to you in respect thereof. By accepting this Agreement and the Processor Terms you are agreeing to the creation of an account with the Processor for Payment Processing (the “Processor Account”). We reserve the right to change the Processor, subject to the terms of our agreement with Processor. In the event of any inconsistency between this Agreement and the Processor Terms, this Agreement shall prevail, except in the event of any inconsistency between this Agreement and the Processor Terms concerning Payment Processing or the Processor Account, in which case the Processor Terms shall prevail.
The Processor’s role is to accept and process credit card, debit card and other types of payments (collectively “Cards”) with respect to sales of your products and services through internet-based transactions (“Transactions”).
It is your responsibility to obtain your customers’ consent to be billed on a recurring basis in compliance with applicable legal requirements and Visa, Mastercard, Discover, American Express or other applicable card network (collectively, the “Payment Networks”) payment rules.
- Authorization for Handling of Funds.By accepting this Agreement, you authorize our financial institution of choice (the “Provider Bank”) to hold, receive, and disburse funds on your behalf when such funds from your card transactions settle from the Payment Networks. You further authorize Stripe, on behalf of Provider, to instruct the Provider Bank in the manner of how your card transaction settlement funds should be disbursed to you (such as by ACH credit transaction or sending you a paper check payable to you) and the timing of such disbursements. You also authorize the Provider Bank to hold settlement funds in a deposit account at the Provider Bank pending disbursement of the funds to you in accordance with the terms of this Agreement. You agree you are not entitled to any interest or other compensation associated with the settlement funds held in the deposit account at the Provider Bank pending settlement to your designated bank settlement account, that you have no right to direct that deposit account, and that you may not assign any interest or grant any security interest or lien in the settlement funds or the deposit account at Provider Bank. From time to time, we may make available to you information regarding anticipated settlement amounts that we have received on your behalf from the Payment Networks and are being held by us pending settlement. The settlement information is for reporting and informational purposes only, and does not create any ownership or other rights in settlement funds, which are provisional credits only, until such funds are credited to your designated bank settlement account.
- Payment Methods.The Service supports any U.S.-issued card and most non-U.S. issued cards with a Payment Network logo, including credit, debit, pre-paid, or gift cards. Provider will only process card transactions that have been authorized by the applicable Payment Network or card issuer. You are solely responsible for verifying the identity of users and of the eligibility of a presented payment card used to purchase your products and services, and Provider does not guarantee or assume any liability for transactions authorized and completed which may later be reversed or charged back (See Chargebacks section below). You are solely responsible for all reversed or charged back transactions, regardless of the reason for, or timing of, the reversal or chargeback. Provider may add or remove one or more types of cards as a supported payment card any time without prior notice to you.
- Customer Service.Stripe and Provider will provide you with customer service to resolve any issues relating to your card payment processing and use of our software, and the distribution of funds to your designated bank settlement account. You and you solely, are responsible for providing service to your customers for any and all issues related to your products and services, including but not limited to issues arising from the processing of customers’ cards through the Service.
- Taxes and Reporting.It is your responsibility to determine what, if any, taxes apply to the sale of your goods and services and/or the payments you receive in connection with your use of the Service (“Taxes”). It is solely your responsibility to assess, collect, report, or remit the correct tax to the proper tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. You acknowledge that we may make certain reports to tax authorities (including, e.g., 1099 forms) regarding transactions that we process and merchants to which we provide card payment services.
Pursuant to the Internal Revenue Code, merchant acquiring entities and third party settlement organizations are required to file an information return with the IRS for each calendar year, reporting all payment card transactions and third party network transactions with merchants occurring in that calendar year as required by law.
- Provider and Stripe maintain commercially reasonable administrative, technical and physical procedures to protect all the personal information regarding you and your customers that is stored in our servers from unauthorized access and accidental loss or modification. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such personal information for improper purposes. You acknowledge that you provide this personal information regarding you and your customers at your own risk.
- Data Security.You are fully responsible for the security of data on your website or otherwise in your possession. You agree to comply with all applicable state and federal laws and rules in connection with your collection, security and dissemination of any personal, financial, Card, or transaction information (defined as “Data”) on your website. You agree that at all times you shall be compliant with the Payment Card Industry Data Security Standards (“PCI-DSS”) and the Payment Application Data Security Standards (“PA-DSS”), as applicable. You agree to promptly provide us with documentation evidencing your compliance with PCI DSS and/or PA DSS if requested by us. You also agree that you will use only PCI-compliant service providers in connection with the storage, or transmission of Card Data, defined as a cardholder’s account number, expiration date, and CVV2. You must not store CVV2 data at any time. Information on PCI-DSS can be found on the PCI Council’s website. It is your responsibility to comply with these standards.
- Audit Right.If we believe that a security breach or compromise of data has occurred, Provider may require you to have a third party auditor that is approved by Provider conduct a security audit of your systems and facilities and issue a report to be provided to Provider, financial banks, and the Payment Networks.
If you receive information about others, including Cardholders, through the use of the Service, you must keep such information confidential and only use it in connection with the Service.
You may not disclose or distribute any such information to a third party or use any such information for marketing purposes unless you receive the express consent of the user to do so. You may not disclose card numbers to any third party, other than in connection with processing a card transaction requested by the buyer customer.
- Restricted Use.You are required to obey all laws, rules, and regulations applicable to your use of the Service (for example, those governing financial services, consumer protections, unfair competition, anti-discrimination or false advertising). In addition to any other requirements or restrictions set forth in this Agreement, you shall not: (i) utilize the credit available on any Card to provide cash advances to Cardholders,(ii) submit any card transaction for processing that does not arise from your sale of goods or service to a buyer customer, (iii) act as a payment intermediary or aggregator or otherwise resell our services on behalf of any third party, (iv) send what you believe to be potentially fraudulent authorizations or fraudulent card transaction, or (v) use the Service in a manner that Visa, MasterCard, American Express, Discover or any other Payment Network reasonably believes to be an abuse of the Payment Network or a violation of Payment Network rules.
You further agree not to, nor to permit any third party to, do any of the following: (i) access or attempt to access our systems, programs or data that are not made available for public use: (ii) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way material from us; (iii) permit any third party to use and benefit from the Service via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) work around any of the technical limitations of the Service, use any tool to enable features or functionalities that are otherwise disabled in the Service, or decompile, disassemble or otherwise reverse engineer the Service, except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Service, prevent access to or use of the Service by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Service except as expressly allowed under this section.
- Suspicion of Unauthorized or Illegal Use.We reserve the right to not authorize or settle any transaction you submit which we believe is in violation of this Agreement, any other Provider or Stripe agreement, or exposes you, our processors or Provider or Stripe to harm, including but not limited to fraud and other criminal acts. You are hereby granting us authorization to share information with law enforcement about you, or your transactions if we reasonably suspect that your use of the payment services has been used for an unauthorized, illegal, or criminal purpose.
- Payment Network Rules.The Payment Networks have established guidelines, bylaws, rules, and regulations (“Payment Network Rules”). You are required to comply with all Payment Network Rules that are applicable to merchants. You can review portions of the Payment Network rules at Visa and MasterCard. The Payment Networks reserve the right to amend the Payment Network Rules. Stripe, acting on behalf of Provider, reserves the right to amend the Agreement at any time with notice to you as necessary to comply with Network Rules or otherwise address changes in the Service.
- Disclosures and Notices.You agree that Provider can provide disclosures and notices, including tax forms such as the IRS form 1099-K, regarding the Service to you by posting such disclosures and notices on our website, emailing them to the email address listed in your Service Account, or mailing them to the address listed in your Service Account. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy. Such disclosures and notices shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to you unless we receive notice that the email was not delivered.
- Automatic Reminders.We may use automated telephone dialing, text messaging systems and email to provide messages to you about your Service Account. The telephone messages may be played by a machine automatically when the telephone is answered, whether answered by you or another party. These messages may also be recorded by your answering machine or voicemail. You give us permission to call or send a text message to any telephone number which you have given us and to play pre-recorded messages or send text messages with information about this Agreement or your account over the phone. You agree that we will not be liable to you for any such calls or electronic communications, even if information is communicated to an unintended recipient. You understand that, when you receive such calls or electronic communications, you may incur a charge from the company that provides you with telecommunications, wireless and/or Internet services. You agree that we have no liability for such charges. You agree to immediately notify us if you change telephone numbers or are otherwise no longer the subscriber or customary user of a telephone number you have previously provided to us.