1. Applicability of these Terms and Conditions
This Agreement governs: (a) Customer’s rights of use of the software program(s) (the “Software”) described in any subsequent online or written order form signed by the parties in accordance with the terms of this Agreement (in each case, an “Order Form”), which Malbek makes available to Customer over the internet on a subscription, software as a service basis (the “SaaS Services”); (b) the provision of any and all related professional services which Customer purchases under an applicable Order Form or a separate Statement of Work entered into by the parties and subject to the terms hereof (“Professional Services”) and; (c) Customer’s rights to use the Product Documentation (the “Documentation”) which Malbek makes available to Customer over the internet via an online portal along with the Software. Each Order Form shall supplement this Agreement and shall be subject to the terms and conditions hereof. In the event of a conflict between the terms of an Order Form and the terms of this Agreement, the terms of this Agreement shall control unless the Order Form expressly modifies this Agreement.
2. Access to and Use of the SaaS Services
Rights of Use. During the Term of any applicable Order Form and subject to the terms and restrictions set forth in this Agreement, Malbek grants Customer a non-exclusive, non-transferable, limited, time-bound, license to: (i) access and use the SaaS Services on a remote-access, subscription basis via the Internet; and (ii) use the SaaS Services in support of its internal business operations. Due to the evolving nature of technology and the inherent nature of the SaaS delivery model, the Software to which Customer is provided remote access hereunder shall be the version of such Software (as updated from time to time by Malbek) which is then generally hosted by Malbek for its clients.
Use by Authorized Employees and Consultants. Customer may only grant access to the SaaS Services to its employees and third-party contractors: (i) who Customer authorizes to use the SaaS Services on its behalf; (ii) who use the SaaS Services solely in support of Customer’s internal business operations; and (iii) who are bound in a legally enforceable manner to comply with the confidentiality, limited use, and intellectual property provisions of this Agreement (“Authorized Users”). Customer shall be responsible and liable to ensure that each Authorized User complies with the terms of this Agreement.
Authorized Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require use of the Subscription Services. The maximum number of Users and/or other subscriptions of the Services is as set forth in Exhibit A. If Customer wishes to add additional subscriptions for Users or other items, these subscriptions must be purchased in advance of use. Malbek may, from time to time and at its own expense, review Customer’s usage of the Services to determine Customer’s compliance with the terms of each Order. Malbek will promptly notify Customer if Malbek determines that Customer’s usage of the Services exceeds Customer’s subscribed entitlements. Customer will pay for any additional subscriptions required for Customer’s actual usage.
Additional Restrictions. Unless otherwise expressly permitted in this Agreement, Customer will not, and shall ensure that its Authorized Users do not: (i) modify, reverse engineer, decompile, disassemble, copy, distribute, create derivative works based on, or otherwise exploit all or any portion of the SaaS Services; (ii) sell, sublicense, rent, lease, or otherwise transfer rights to, or permit any third party to access or use, all or any portion of the SaaS Services; (iii) use the SaaS Services to operate in an outsourcing or service bureau arrangement or in any manner which supports the business or operations of a third party; or (iv) use the SaaS Services in any manner which: (a) poses a security risk; (b) violates any applicable law or regulation or any acceptable use policy or similar policy which is posted on the website where the SaaS Services are accessed; (c) could disable, overburden, damage, or impair the performance or operation of the SaaS Services or the associated hosted environment; (d) introduces offensive, pornographic, infringing or other inappropriate content; or (e) poses a liability risk to Malbek.
Customer Data. “Customer Data” is all data or information provided by Customer to Malbek or uploaded by Customer in the course of using the SaaS Services. All Customer Data shall remain the property of Customer, Customer will have the right to retrieve its data at any time during the subscription term, and as set forth in 3c, shall have 30 days after termination of agreement to extract the Customer Data.
Intellectual Property Rights. The SaaS Services (including the underlying Software) are licensed, not sold. Except for the license expressly granted herein and for Customer’s ownership of the Customer Data, Malbek (or, as applicable, its third-party licensors) solely and exclusively retains all right, title and interest in and to the SaaS Services and Software, and in and to the associated documentation, materials, know-how, technology, content, methods and processes, as well as to all intellectual property rights and derivative works related thereto. Similarly, any work product conceived of or developed by Malbek during the performance of any Professional Services will belong solely and exclusively to Malbek unless agreed otherwise by the parties hereto. In the event that Customer or any of its users submit any ideas, suggestions, proposed enhancements, or other feedback relating to the SaaS Services (collectively, “Feedback”), Malbek shall automatically own such Feedback without compensation to Customer and Customer hereby assigns all rights in such Feedback to Malbek. Any rights not expressly granted to Customer under this Agreement are reserved by Malbek.
Conditions of Service. Malbek will use commercially reasonable efforts to make the SaaS Services available for access during the Term of each Order Form entered into hereunder, except for planned and emergency downtime, outages or delays caused by Customer or by Force Majeure events (as set forth in Section 7(f) below) and/or suspension or termination of access rights as permitted herein.
Third-Party Materials. Software, technology, services or other materials owned by third parties may be utilized by Customer in concert with the SaaS Services, and the SaaS Services may refer, link to or integrate with websites or other technology provided by third parties (collectively, (“Third-Party Materials”). Unless otherwise expressly provided in this Agreement or an Order Form, Customer is solely responsible and liable, and Malbek is not responsible or liable, in connection with Customer’s access to or use of any Third-Party Materials. In addition, a portion of the Software may contain open source software, which Customer may use as long as it complies with the terms and conditions of the specific license under which such software is distributed.
3. Term and Termination
Initial Term and Renewals; Notice of Price Increases for Renewal Terms. The “Initial Term” of this Agreement and each Order Form shall be for a period of three (3) years from the date of execution of the applicable Order Form. The Agreement and each Order Form will continue in effect on a year to year basis after the expiration of the Initial Term (as applicable; in each case, a “Renewal Term”) unless either party provides at least thirty (30) days prior written notice of its desire not to renew prior to the expiration of the then-current term, in which event the Order Form and/or this Agreement will terminate at the end of the then current term. In the event that Malbek changes the pricing for periods beyond the Initial Term of an applicable Order Form, Malbek will provide Customer with at least sixty (60) days written notice of the new pricing prior to the end of the then current term. Unless Customer provides a notice of nonrenewal as set forth above, the new pricing will take effect at the beginning of the applicable Renewal Term. The Initial Term, along with any Renewal Term constitutes the “Term” of an Order Form and/or this Agreement. If this Agreement, or an Order Form, is terminated prior to the natural expiration of its Term as authorized hereunder, then the Term shall be deemed reduced accordingly.
Termination; Suspension. Either party may terminate this Agreement or an Order Form upon written notice if the other party breaches any material provision of this Agreement and fails, within thirty (30) days after receipt of written notice of such breach, to correct the breach. Failure to make undisputed payment of any invoice when due shall constitute a material breach hereof. In the event Customer disputes any portion of an invoice, Customer shall be required to pay all undisputed portions of such invoice according to the terms set forth herein and the parties shall work to resolve such dispute within a commercially reasonable period of time. Either Party may terminate this Agreement forthwith in the event the other Party becomes insolvent, makes an assignment for the benefit of its creditors, or a receiver is appointed or a petition in bankruptcy is filed with respect to the Party and is not dismissed within thirty (30) days. A termination of this Agreement for breach shall result in an automatic corresponding termination of all Order Forms then in effect, while a termination of any individual Order Form will not result in the termination of this Agreement or any other Order Form unless the Agreement or other Order Form is also terminated for breach. Either party may terminate this Agreement in writing at any point when there is no Order Form then in effect. Without limiting the above, Malbek may suspend Customer’s rights of use, or any Authorized User’s rights of use, in the SaaS Services: (i) if Customer is delinquent in its undisputed payment obligations for more than five (5) days after Malbek notifies Customer of the delinquency; (ii) if Customer, or any Authorized User, misuses the SaaS Services in material violation of the terms hereof or Customer’s (or any Authorized User’s) use of the SaaS Services is in violation of applicable law or presents an imminent security, or liability risk.
Effect of Termination; Survival. Upon termination of this Agreement or any Order Form, all rights and obligations will automatically terminate except as otherwise provided below. In addition, Customer will return all of Malbek’s proprietary materials, Confidential Information and other property, and immediately cease all access to, and use of, the SaaS Services. Customer shall have thirty (30) days after termination, to extract the Customer Data. Thereafter, upon written notice to Customer, Malbek may, without obligation to do so, delete any or all of the Customer Data without liability. The terms of this Agreement which relate to confidentiality, intellectual property ownership, indemnity, limitations and disclaimers of liability and warranty, and payment obligations, along with terms which expressly or by their nature should reasonably survive termination, shall survive expiration or termination hereof.
4. Financial Terms
Unless otherwise expressly provided in an applicable Order Form, all SaaS Services and Professional Services fees (and associated reimbursable expenses) shall be invoiced in advance on or about the first day of the Initial Term or Renewal Term (as applicable) of each Order Form and shall be due within thirty (30) days of issuance of the invoice. Invoiced amounts not paid by their due date shall be subject to a one percent (1%) per month interest fee, or the maximum amount permitted by applicable law, whichever is less. Prices do not include, and Customer shall promptly pay, all sales, use and other applicable taxes in connection with the SaaS Services or any other services or support provided, or any payments made, under any Order Form or this Agreement. All fees due throughout the Term of each Order Form are committed amounts which are non-cancelable and non-refundable.
5. WARRANTY, DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY.
Malbek warrants, for the Term of each Order Form, and conditioned on Customer’s use of the SaaS Services in compliance herewith, that the SaaS Services will perform in all material respects in accordance with the applicable Documentation that Malbek provides along with the SaaS Services. Malbek further warrants that (i) all Professional Services will be performed in a professional manner, and (ii) it will use commercially reasonable efforts to detect and remove or neutralize viruses or other malicious code that could have an adverse effect on Customer’s use of SaaS Services. In the event that Malbek breaches a warranty above and is notified promptly thereof, then Malbek will exert commercially reasonable efforts thereafter to remedy the deficiency within a reasonable period of time.
EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE SOFTWARE, SAAS SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND MALBEK MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, AND EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. MALBEK EXPRESSLY DOES NOT WARRANT THAT THE SAAS SERVICES, IN WHOLE OR IN PART, WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOST PROFITS, LOST DATA OR LOST REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR (I) INDEMNIFYING OBLIGATIONS AS SET FORTH IN SECTION 6 BELOW, (II) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (III) UNAUTHORIZED DISCLOSURE OR USE OF CUSTOMER DATA OR THE BREACH OF CONFIDENTIALITY OBLIGATION HEREUNDER (WHICH DAMAGES SHALL BE LIMITED TO 3X THE DAMAGES CAP), THE AGGREGATE LIABILITY OF MALBEK AND ITS SUPPLIERS UNDER THIS AGREEMENT SHALL APPLY SEPARATELY TO EACH ORDER FORM AND SHALL NOT EXCEED THE AMOUNT OF SAAS SUBSCRIPTION FEES PAID BY CUSTOMER UNDER SUCH ORDER FORM IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE INITIAL CLAIM ASSERTED BY CUSTOMER THEREUNDER (THE “DAMAGES CAP”). THE REMEDIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE, SHALL APPLY TO ALL CAUSES OF ACTION AND SHALL APPLY EVEN IF A PARTY SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Each Party shall defend, indemnify and hold harmless the other Party, including Affiliates and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assigns from and against all Claims of Third Parties, and all associated Losses, to the extent arising out of (a) a Party’s gross negligence or willful misconduct in performing any of its obligations under this Agreement, or (b) a material breach by a Party of any of its representations, warranties, covenants or agreements under this Agreement.
Confidentiality. “Confidential Information” is non-public information of a party which is provided to the other party hereunder and which is either designated as confidential or of a type which should be recognized by a commercially reasonable party as confidential. Confidential Information of Malbek includes the Software and its related documentation and materials, and the terms and conditions of this Agreement. Confidential Information of Customer shall include all Customer Data provided to Malbek or uploaded through the SaaS Services. The parties receiving Confidential Information may use it only for the purposes for which it was provided and may not disclose it to any third party unless such third party is providing services or functions in support of a party’s exercise of its rights or performance of its obligations hereunder and is bound in writing by confidentiality and limited use restrictions substantially similar to those required hereunder. The obligations to maintain the Confidential Information as confidential shall remain in place for so long as the applicable information is maintained as confidential. The limitations on disclosure or use of Confidential information shall not apply to information which (i) is rightfully obtained by the recipient without breach of any confidentiality obligation; (ii) is or becomes known to the public through no act or omission of the recipient; (iii) the recipient develops independently without using Confidential Information of the other party; or (iv) is disclosed in response to a valid court or governmental order, provided that, in such case, the recipient shall, to the extent reasonably practicable, give the other party prior written notice to afford the other party an opportunity to contest the disclosure.
Customer shall maintain, and shall ensure that its Authorized Users maintain, the confidentiality of all account information that Malbek provides to Customer to enable access and use of the SaaS Services. Customer shall be fully responsible for any unauthorized disclosure or use of such account information.
Use of Customer Data. Customer grants Malbek a license to use, reproduce, perform, display and share Customer Data as is reasonably necessary in order to provide the SaaS Services and Professional Services and to otherwise perform Malbek’s obligations contemplated hereunder, including by sharing Customer Data with third parties (such as its hosting provider) that support the provision of such services. Customer is responsible for obtaining all necessary rights and consents for Malbek to use, process and store all Customer Data for the purposes of providing the SaaS Services and meeting Malbek’s obligations under this Agreement and each Order Form.
Services Provided by A Third Party. Customer acknowledges and agrees that certain SaaS Services provided under this Agreement may be provided in concert with a third party. Malbek shall ensure that any such third parties providing such services only do so under terms no less stringent than those stipulated in this Agreement. Malbek uses industry-leading tools and efforts to ensure the best manner which SaaS Services shall be provided.
Right to Use Name. Malbek may use the Customer name with Malbek employees, subcontractors, investors and other stakeholders. For any written marketing, website, other publications, or public announcements, Malbek may use Customer’s name and/or logo only with Customer’s prior written consent. Neither party shall disclose any of the specific terms of this Agreement to any third party without the prior written consent of the other party, which consent shall not be withheld unreasonably. Notwithstanding the foregoing, any party may disclose information concerning this Agreement as required by the rules, orders, regulations, subpoenas or directives of a court, government or governmental agency, after giving prior notice to the other party.
Independent Contractor Relationship; No Third-Party Beneficiaries. The parties are independent contractors, and nothing contained in this Agreement will be construed to create an association, trust, partnership, agency or joint venture between the parties. This Agreement does not and is not intended to confer any rights or remedies, express or implied, upon any person other than the parties hereto.
Assignment. The parties may not assign or transfer any part of this Agreement without the prior written consent of the other party. Either party may assign this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or a controlling interest in its stock but will endeavor to provide notice of such assignment as soon as practicable after it occurs.
Force Majeure. Neither party will be liable to the other for any failure to perform any of its obligations under this Agreement during any period in which performance is delayed by circumstances not within such party’s reasonable control, such as a natural disaster, act of war or terrorism, government action, labor disruption, internet outages or interruptions, failure of third party equipment, or power outages or interruptions, (a “Force Majeure”); provided, that where practicable under the circumstances, the effected party by such Force Majeure must notify the other Party promptly in writing upon the occurrence of any such event, and inform the other Party of its plans to resume performance.
Compliance with Laws (Including Export Laws). Each party shall abide by all applicable laws and regulations regarding the exercise or rights and performance of obligations under this Agreement. Without limiting the above, Customer shall comply with all applicable import, re-import, export and re-export control laws, orders and regulations of the United States and other applicable jurisdictions.
Entire Agreement; Severability; Waiver. This Agreement is the entire agreement between Customer and Malbek with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements between Customer and Malbek regarding that subject matter. No amendment to or modification of this Agreement will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement is found to be void or unenforceable, the provision will be stricken or modified, and the remainder of this Agreement will remain in full force and will not be terminated. A waiver of any default is not a waiver of any subsequent default. All waivers must be in writing to be effective.
Governing Law and Jurisdiction. This Agreement shall be construed in accordance with the laws of the State of Delaware without regard to the conflicts of law provisions thereof. In the event that an unresolved dispute arises over the enforcement, interpretation, construction or breach of this Agreement, the Parties agree that it shall be litigated in the U.S. District Court for the District of Delaware, or in the Delaware state courts located in Wilmington, Delaware, and hereby irrevocably submit to the exclusive jurisdiction of such courts for all purposes with respect to any dispute arising from or in connection with this Agreement, except with respect to any action for equitable relief, in which event the Parties irrevocably submit to the jurisdiction of any competent court.
Notices. All notices must be in writing and shall be sent by email, first-class U.S. mail, or a nationally known express or overnight courier (such as FedEx, UPS or the U.S. Postal Service). Notices to Malbek shall be sent to the address set forth in the opening paragraph of this Agreement and, for each notice, a copy shall also be sent to Malbek’s COO. Notices to Customer may be sent to address set forth in the opening paragraph of this Agreement. Notices shall be deemed given upon receipt thereof. Notices delivered by courier shall be deemed received on the date shown on the courier’s confirmation of delivery. Any notice of change in address shall also be given in the manner set forth above.
Government. The SaaS Services may not be used by any governmental agency or body absent the parties entering into a separate amendment or agreement in advance of any such use.