UNIKA SAAS AGREEMENT
This SaaS Agreement (“AGREEMENT”) governs your use of the web-based administrative platform “Unika” (the “PLATFORM”). This Agreement is between the entity entering into this Agreement below (“CUSTOMER”) and Neudesic, LLC, a California limited liability company located at 200 Spectrum Center Drive, Suite 2000, Irvine, California, 92618 (“NEUDESIC”). BY ACCEPTING THIS AGREEMENT, OR USING THE PLATFORM YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PLATFORM.
- RIGHTS GRANTED AND RESTRICTIONS
- ACCESS Grant. Subject to the terms and conditions of this AGREEMENT (and the associated Order Form), NEUDESIC hereby grants to CUSTOMER, its employees, agents and consultants, a non-exclusive, limited, revocable right to access and use the PLATFORM on NEUDESIC’s hosted environment.
- Use Restrictions. The rights granted under this AGREEMENT shall be further limited to the PLATFORM specifications and the length of the Service Term specified in the applicable Order Form.
- LIMITATIONS. NEUDESIC’S ability to provide functionality, accurate analytics and data through the PLATFORM is based upon the assumption that any/all data provided by CUSTOMER related to setup/configuration of the PLATFORM is accurate and in the format required by NEUDESIC and the PLATFORM.
- Representations by CUSTOMER. CUSTOMER shall be responsible for its compliance with this AGREEMENT and CUSTOMER represents and warrants that CUSTOMER is solely responsible for complying with any regulations, laws, or conventions applicable to data that CUSTOMER provides to NEUDESIC in connection with the PLATFORM. To the extent that NEUDESIC is assisting CUSTOMER with setup/installation/implementation of the PLATFORM, CUSTOMER agrees that such resources shall be readily available, and shall provide prompt responses to NEUDESIC’s requests. CUSTOMER agrees that it shall not: (i) make the PLATFORM available to any unauthorized third-party, (ii) use the PLATFORM to store or transmit infringing or unlawful material, (iii) interfere with or disrupt the integrity or performance of the PLATFORM or third-party data contained therein, (iv) modify, translate, alter, or create derivative works of the PLATFORM, or (v) reverse engineer, decompile, disassemble or use the PLATFORM for the purpose of developing or operating products or services that are in competition with CUSTOMER.
- Ownership. CUSTOMER acknowledges and agrees that access to the PLATFORM is licensed and that: (i) the PLATFORM is protected under U.S. and international intellectual property laws, (ii) NEUDESIC retains all intellectual property rights in the PLATFORM, and (iii) there are no implied licenses under this AGREEMENT, and any rights not expressly granted to CUSTOMER hereunder are reserved by NEUDESIC.
- PLATFORM MAINTENANCE AND SUPPORT. Support and maintenance shall be provided by NEUDESIC to CUSTOMER in connection with CUSTOMER’s use of the PLATFORM (the “MAINTENANCE PROGRAM”).
- GENERALLY. The MAINTENANCE PROGRAM includes limited technical support for standard issues related to the PLATFORM.
- EXCLUSIONS. The MAINTENANCE PROGRAM does not include: (i) any specialized PLATFORM installation or integration services (“Installation & Integration Services”), (ii) installation or support of third-party hardware or software, or (iii) significant functionality enhancements to the PLATFORM. NEUDESIC can provide the foregoing “EXCLUDED SERVICES,” however NEUDESIC and CUSTOMER may enter into a separate Statement of Work (“SOW”) for such services.
- CONTACTS. CUSTOMER shall designate Points of Contact that are authorized to contact the NEUDESIC Support Team. The number of authorized Points of Contact will be set forth in each Order Form, and the name, address, email address, phone and mobile phone number for each Point of Contract must be provided by CUSTOMER to NEUDESIC. Only the authorized Points of Contact may contact the CUSTOMER Support Team at email@example.com
- FEES AND PAYMENT.
- MONTHLY Fee. NEUDESIC shall activate the PLATFORM for CUSTOMER upon signing of an Order Form (provided that CUSTOMER has entered into this Agreement). If CUSTOMER has not prepaid for the PLATFORM via credit card, NEUDESIC shall invoice CUSTOMER on a monthly basis in arrears based on the PLATFORM license purchased by CUSTOMER in an Order Form.
- PAYMENT TERMS. Unless otherwise stated in an Order Form, payment terms are Net 30 from the date of each invoice. Invoices not paid within thirty (30) days from the date of each invoice will incur interest from the due date (until paid) at a rate of five percent (5%) per month. CUSTOMER reserves the right to terminate CUSTOMER’S access to the PLATFORM in the event that any invoice remains outstanding in excess of 45 days past its due date.
- WARRANTY AND INTELLECTUAL PROPERTY PROTECTION
- General Warranty. NEUDESIC warrants that it has full power and authority to grant CUSTOMER the rights granted herein, and that the PLATFORM and accompanying documentation are free of any and all restrictions, settlements, judgments or adverse claims.
- DISCLAIMER. THE PLATFORM IS PROVIDED ON AN "AS-IS" BASIS. AS FAR AS LEGALLY PERMISSIBLE, NEUDESIC DISCLAIMS ALL WARRANTIES RELATING TO THE PLATFORM OR RELATED MAINTENANCE, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPATIBILITY OR NON-INFRINGEMENT.
- Intellectual Property Protection. NEUDESIC will defend at its own expense any action against CUSTOMER brought by a third party to the extent that the action is based upon a claim that: (i) if true, would constitute a breach by NEUDESIC of its confidentiality obligations hereunder, or (ii) the PLATFORM infringes any copyright or trademark or misappropriates any trade secret rights recognized under applicable law. NEUDESIC will pay those costs and damages finally awarded against CUSTOMER in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on CUSTOMER notifying NEUDESIC promptly in writing of such action, CUSTOMER giving NEUDESIC sole control of the defense thereof and any related settlement negotiations, and CUSTOMER cooperating assisting in such defense. If the PLATFORM becomes the subject of an infringement claim, NEUDESIC may, at its option and expense, either procure for CUSTOMER the right to continue exercising the rights licensed to CUSTOMER in this AGREEMENT, or replace or modify the PLATFORM so that it becomes non-infringing and remains functionally equivalent. If neither of the foregoing options are, in NEUDESIC’s reasonable option, commercially reasonable, NEUDESIC may terminate this AGREEMENT and will refund to CUSTOMER a pro-rata portion of any applicable pre-paid fees. Notwithstanding the foregoing, NEUDESIC will have no obligation under this Section or otherwise with respect to any infringement claim based upon any EXCLUSIONS, or continued use of anything other than the current version of the PLATFORM. This Section states NEUDESIC’s entire liability and CUSTOMER’s sole and exclusive remedy for infringement claims and actions. For purposes of this Section, an “EXCLUSION” shall be defined as: (A) third-party PLATFORM components or services that are not provided by NEUDESIC, (B) unauthorized modifications to the PLATFORM, or (C) unauthorized use of the PLATFORM or use of the PLATFORM other than in accordance with the PLATFORM documentation.
- TERM & TERMINATION.
- Term. This AGREEMENT is effective from the date that NEUDESIC and CUSTOMER sign this AGREEMENT below (“EFFECTIVE DATE”), and is valid until terminated by either Party in accordance with this AGREEMENT.
- Termination for Breach. Either Party may terminate this AGREEMENT or any Order Form by written notice to the other Party if the other Party breaches any material provision of this AGREEMENT (or the Order Form) and such breach is not cured within thirty (30) days after written notice thereof is received by the breaching Party.
- TERMINATION FOR CONVENIENCE. Either Party may terminate this AGREEMENT or any Order Form for convenience upon thirty (30) days prior written notice to the other Party. Any prepaid fees that NEUDESIC maintains after the effective date of termination shall be refunded to CUSTOMER.
- LIMITATION OF LIABILITY & INDEMNIFICATION.
- TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER AGREES THAT THE ENTIRE LIABILITY OF NEUDESIC, AND CUSTOMER’S, OR ANY THIRD PARTY’S EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE PLATFORM OR ANY BREACH OF THIS AGREEMENT BY NEUDESIC IS LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO NEUDESIC FOR LICENSE TO USE THE PLATFORM DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE OF A CLAIM, REGARDLESS OF THE NATURE OF THE LIABILITY OR THE NUMBER OF CLAIMS GIVING RISE TO THE LIABILITY. NEUDESIC WILL NOT, UNDER ANY CIRCUMSTANCES OR ANY THEORY OF LIABILITY, BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS, LOSS OF DATA, OR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES ARISING FROM THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. CUSTOMER HEREBY RELEASES NEUDESIC AND SUCH OTHER PERSONS FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION.
- NEUDESIC shall indemnify, defend and hold CUSTOMER harmless from all damages/claims but only to the extent directly and solely related to any actual or alleged breach of this AGREEMENT by NEUDESIC.
- CONFIDENTIAL INFORMATION.
- DEFINED. As used herein, "CONFIDENTIAL INFORMATION" means all information provided by a Party to the other Party that is designated as “CONFIDENTIAL,” however shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to a Party hereunder, (ii) was known by the Party receiving the information (the “RECEIVING PARTY”) prior to its disclosure without breach of any obligation owed hereunder, as demonstrated by written records, (iii) is received by the Receiving Party from a third party without breach of any obligation owed to the other Party hereunder, or (iv) was independently developed by the Receiving Party without reference to the CONFIDENTIAL INFORMATION, as demonstrated by written records.
- RESTRICTIONS. Receiving Party will comply with the following restrictions: (i) Receiving Party shall not disclose the CONFIDENTIAL INFORMATION to any other person or entity without obtaining the prior written consent from the Party that disclosed such CONFIDENTIAL INFORMATION (the “DISCLOSING PARTY”), (ii) Receiving Party shall only use the CONFIDENTIAL INFORMATION in contemplation and furtherance of the services performed or received under this AGREEMENT, (iii) Receiving Party shall restrict disclosure of Confidential Information solely to those employees or agents of RECEIVING PARTY that have a "need to know" such information and have agreed in writing to be bound by the provisions of this AGREEMENT, (iv) Receiving Party shall make copies of the CONFIDENTIAL INFORMATION only as necessary to disseminate to appropriate employees or agents of Receiving Party as permitted herein, (v) Receiving Party will safeguard the Confidential Information with the same degree of care as Receiving Party uses to protect its own confidential and private information; and (vi) Receiving Party will comply with all applicable laws and regulations, in connection with its use of the Confidential Information. If Receiving Party is compelled by law to disclose any Confidential Information, Receiving Party shall give DISCLOSING PARTY prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, if DISCLOSING PARTY wishes to contest the disclosure.
- MISCELLANEOUS PROVISIONS
- No Waiver. The waiver of any term, condition, or provision of this AGREEMENT must be in writing and signed by an authorized representative of the waiving Party. Any such waiver will not be construed as a waiver of any other term, condition, or provision except as provided in writing, nor as a waiver of any subsequent breach of the same term, condition, or provision.
- Severability & SURVIVAL. If any provision in this AGREEMENT is held invalid or unenforceable by a body of competent jurisdiction, such provision will be construed, limited or, if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability. The parties agree to negotiate in good faith a valid, enforceable substitute provision that most nearly effects the parties’ original intent in entering into this AGREEMENT or to provide an equitable adjustment in the event no such provision can be added. The other provisions of this AGREEMENT will remain in full force and effect. Expiration or termination of this AGREEMENT shall not relieve either Party of its obligations regarding intellectual property, warranties, confidentiality, indemnification, and limitation of liability.
- Entire Agreement. This AGREEMENT (and Order Form) comprises the entire understanding between the Parties with respect to its subject matters and supersedes any previous communications, representations, or agreements, whether oral or written.
- Governing Law. This AGREEMENT will be governed by and construed in accordance with the substantive laws of the State of California regardless of any conflict of law principles. Any suit, action or proceeding arising out of or relating to the PLATFORM or this AGREEMENT shall only be instituted in the County of Orange, State of California.
- Marketing. NEUDESIC may use CUSTOMER’s name and/or logo in any press releases, announcements, media outreach and online mediums as they relate to CUSTOMER’S usage of the PLATFORM.
- NOTICES. Any notice or consent required to be given under this AGREEMENT shall be in writing and, if to NEUDESIC, shall be addressed to the address set forth in the opening paragraph of this AGREEMENT (Attn: Legal Department). Notices to CUSTOMER shall be addressed to the contact designated by CUSTOMER in the associated Order Form.
- Maintenance and Support
- STANDARD HOURS & OFF-HOURS. The NEUDESIC Support Team will be available to receive support requests (via telephone and email) between 6:00am and 6:00pm Pacific Standard Time, Monday through Friday (“Standard Hours”). Outside of the Standard Hours, the NEUDESIC Support Team will be available to receive support requests via telephone only (not email).
- PRIORITIZATION. After the initial support request is made by CUSTOMER, the request is triaged by the NEUDESIC Support Team based upon Severity Level.
Severity Level 1 (Emergency): The PLATFORM is totally inoperative. This Severity Level can only be assigned to situations in which the PLATFORM has already been operating in production or “live” environments.
Severity Level 2 (High): The PLATFORM is usable, but functionality is degraded or restricted in a material manner.
Severity Level 3 (Low): The PLATFORM is usable, but one or more functions may not operate as expected (however functionality is not degraded or restricted in a material manner).
- INITIAL RESPONSE TIMES. The “Initial Response Time” is the time between when CUSTOMER makes the initial email or phone request to the NEUDESIC Support Team, and the time at which NEUDESIC sends an initial response to CUSTOMER’S request.
During Standard Hours
NEUDESIC agrees to respond to any CUSTOMER request via email or phone, with an Initial Response Time in accordance with the following:
Severity 1 (Emergency) Initial Response Time = 1 hour.
Severity 2 (High) Initial Response Time = 2 hours.
Severity 3 (Low) Initial Response Time = 1 “Business Day” (defined as any day other than a Saturday or Sunday or a Federal holiday).
NEUDESIC agrees to respond to any CUSTOMER request via telephone in accordance with the following:
Severity 1 (Emergency) Initial Response Time = 1 hour.
Severity 2 (High) or Severity 3 (Low) = next Business Day.
- ESTIMATED RESOLUTION TIMES. After delivering an initial response to CUSTOMER, NEUDESIC will aim to provide solutions or workarounds to any reported issues as follows:
Severity 1 (Emergency) Solution/Workaround = 1 Business Day
Severity 2 (High) Solution/Workaround = 2 Business Days
Severity 3 (Low) Solution/Workaround = When commercially feasible.
- Uptime Guarantees
- UPTIME. NEUDESIC shall ensure that the PLATFORM retains at least a ninety-nine percent (99%) uptime measured over each calendar month. Uptime for a calendar month is calculated in accordance with the following formula:
“Uptime” = (Total mins/month) – (Total Downtime mins/month)
- DOWNTIME. “Downtime” is defined as any unavailability of the PLATFORM that: (a) commences as of the earlier of (i) the time NEUDESIC detects an incidence of a service interruption or (ii) the time that CUSTOMER notifies NEUDESIC of such interruption, and (b) ends when full functionality is restored. NEUDESIC shall notify CUSTOMER of any Downtime event within fifteen (15) minutes of its detection of such Downtime event. Downtime shall not include any period of unavailability due to either: (1) scheduled maintenance lasting no more than four (4) hours for which NEUDESIC has provided CUSTOMER with no less than forty-eight (48) hours prior notice in writing or by email (provided that NEUDESIC shall use all commercially reasonable efforts to minimize scheduled maintenance and to perform such maintenance during NEUDESIC hours of 12:00am to 4:00am Pacific Standard Time), or (2) any other event beyond the reasonable control of NEUDESIC, which includes without limitation any external interruption of power or telecommunications; denial of service, virus/worm or other attack; the failure or substantial failure of the Internet; the internet service provider or internal telecommunications equipment of NEUDESIC or any end user; the browser configurations, hardware and/or software of NEUDESIC or any end user; and/or any other force majeure event. NEUDESIC agrees to take reasonable industry standard precautions to mitigate the risk of Downtime, including but not limited to (a) use of anti-virus and anti-trojan software; (b) prompt installation of available hardware and software patches; (c) implementation of industry standard firewalls; (d) implementation of backup power generation facilities, security systems, scheduled backups, and fire protection systems.
- Exclusive Remedy for Failure to Perform. Should NEUDESIC fail to meet any of its Maintenance Program or Uptime commitments set forth herein in any calendar month, as CUSTOMER’s remedy for such failure, NEUDESIC shall issue a credit to CUSTOMER equal to five percent (5%) of the total amount of monthly fees payable by CUSTOMER to NEUDESIC during the preceding calendar month for each such failure. Notwithstanding the foregoing, a credit amount in any given month cannot exceed the amount of the Monthly Fee for a given month. In the event that any credits exceed the amount of the Monthly Fee, those credits shall be forfeited by CUSTOMER.