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SOFTWARE AS A SERVICE AGREEMENT

This Software as a Service Agreement (this “SaaS Agreement”) is entered into by and between Abunden Meets Inc (“Abunden”) and the Customer listed on the applicable Order Form, which, together comprise the “Agreement” under which Abunden will provide the Customer with software-as-a-service access to the software (including related documentation) or products listed in the Order Form (the “Software” or “Products,” respectively) and made available to Customer as a hosted service (the “Services”). Any capitalized terms used herein and not expressly defined shall have the meaning given to them as set forth in the Order Form.

1. SAAS SERVICES

  1. Abunden hereby grants to Customer a fixed term, worldwide, nonexclusive, royalty free non-sublicensable and non-transferable right to access and use the Software solely as part of the Services, for the Subscription Term (as defined below) solely for Customer’s own internal use and solely to perform those functions defined in the user documentation, and subject to all limitations and restrictions contained herein and in the Order Form (“Use”). All rights and licenses granted hereunder to Use the Services shall terminate immediately, without notice, upon expiration or termination of the Subscription Term. The Services may contain or be accompanied by certain third-party components created and separately subscribed to Customer by third parties. CONSEQUENTLY, ABUNDEN’S PROVISION OF THIRD-PARTY COMPONENTS TO CUSTOMER IS ON AN “AS IS” BASIS WITHOUT WARRANTY FROM ABUNDEN OF ANY KIND. ABUNDEN DISCLAIMS ALL WARRANTIES AND INDEMNITIES WITH RESPECT TO THE THIRD-PARTY COMPONENTS, EXPRESS OR IMPLIED, AND ASSUMES NO LIABILITY WITH RESPECT TO THE THIRD-PARTY COMPONENTS.

2. LIMITATIONS OF USE

  1. Customer agrees to comply with all applicable laws, regulations and ordinances relating to its use of the Services, Software or anything related thereto.
  2. Customer shall not permit any parent, subsidiaries, affiliated entities, or third parties to access the Services.
  3. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Software or data related to the Services; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Abunden or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third-party; or remove any proprietary notices or labels.
  4. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software is a “commercial item” and according to DFAR section 252.2277014(a)(1) and (5), are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of the Agreement and will be prohibited except to the extent expressly permitted by the terms of the Agreement. Customer hereby agrees not to provide to Abunden any technical data as that term is defined in the International Traffic in Arms Regulations (“ITAR”) at 22 CFR 120.10.
  5. Customer will defend, indemnify and hold harmless Abunden, and its respective Abunden affiliated entities, directors, officers, employees, agents, and subcontractors (including, but not limited to, third parties, such as offshore entities who employ foreign nationals, and Abunden affiliated entities and subsidiaries who may also be foreign nationals) from and against any and all claims, costs, losses, damages, judgments and expenses (including reasonable attorneys’ fees) arising out of or in connection with (i) Customer’s violation of the terms of the Agreement; and (ii) Customer’s content or inputs into the Service (including, but not limited to Customer Data). Although Abunden has no obligation to monitor Customer’s use of the Services, Abunden may do so and may prohibit any use of the Services if it believes that such use may be (or alleged to be) in violation of the Agreement.
  6. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, internet connections, hardware, servers, software, operating systems, networking, web browsers, web servers and the like (collectively, “Equipment”). Customer shall also be solely responsible for (i) using types and versions of Equipment that are compatible with the Services, maintaining the security of the Equipment and (ii) securing Customer account, passwords (including but not limited to administrative and user passwords) and files, and (iii) all uses of Customer account and Equipment with or without Customer’s knowledge or consent.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

  1. Each party, as a recipient of information (the “Receiving Party”) understands that the disclosing party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). For clarity, the term ‘Proprietary Information’ does not include any personally identifiable information or data privacy. Proprietary Information of Abunden includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to Abunden to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third-party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. Notwithstanding anything to the contrary, there shall be no expiration or termination to the obligation of confidentiality owed by the Receiving Party hereunder as to any trade secret shared by the Disclosing Party. Nothing in the Agreement will be construed to convey any title or ownership rights of a party’s Proprietary Information to the other.
  2. Abunden shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, including those resulting from feature requests or other suggestions from the Customer, (b) any software, applications, inventions or other technology developed in connection with professional services, implementation services or support, and (c) all intellectual property rights related to any of the foregoing.
  3. Notwithstanding anything to the contrary, Abunden shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Abunden will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Abunden offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Abunden reserves all rights not expressly granted herein.

4. FEES AND PAYMENT TERMS

  1. The fees for the Services (the “Fees”) during the Subscription Term (as defined below) are billed annually in advance. Abunden may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Abunden thirty (30) days after the mailing date of the invoice.
  2. If Customer’s use of the Services exceeds the permitted scope of the Services, Customer will be billed at then-current rates for such usage, and Customer agrees to immediately pay the additional fees in the manner provided herein. Unless otherwise expressly stated in the Order Form, Abunden reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of each Initial Term (as defined below) or Renewal Term (as defined below), as applicable, upon sixty (60) days prior notice to Customer (which may be sent by email).
  3. In addition to the Fees, Customer shall be responsible for all taxes associated with the Services other than U.S. taxes based on Abunden’s net income. The subscription, service fees, and other amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse Abunden and hold Abunden harmless for all sales, use, VAT, excise, property or other taxes or levies which Abunden is required to collect or remit to applicable tax authorities. This provision does not apply to Abunden’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished Abunden with a valid tax exemption certificate. If the Customer is required by law to make any such deduction or withholding, the Customer shall promptly effect payment thereof to the applicable tax authorities. The Customer shall also promptly provide Abunden with official tax receipts or other evidence issued by the applicable tax authorities sufficient to enable Abunden to support a claim (if applicable) for income tax credits.

5. TERM AND TERMINATION

  1. Subject to earlier termination as provided below, the Agreement is for the initial term (“Initial Term”) as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Term (each a “Renewal Term”), unless either party requests termination at least sixty (60) days prior to the end of the then-current term. The Initial Term together with all Renewal Term(s) are collectively, the “Subscription Term.”
  2. In addition to any other remedies it may have, either party may also terminate the Agreement upon thirty (30) days’ written notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of the Agreement and such breach is not cured within such thirty (30) day period. Customer is responsible for all outstanding Fees due at the time of termination. Upon any termination, Abunden shall make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Abunden may, but is not (i) obligated to, delete stored Customer Data or (ii) responsible for any inability of Customer to retrieve all Customer Data from the system before deletion. All sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
  3. If Abunden, in good faith, believes that Customer has breached the Agreement or determines that Customer is using the Service in such a way as to negatively impact its ongoing business interests, Abunden may, at its sole discretion, suspend Customer’s access to the Services, without refund, in addition to such other remedies as Abunden may have at law or pursuant to the Agreement.

6. WARRANTY AND DISCLAIMER

ABUNDEN DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, THE SERVICES, SOFTWARE, SUPPORT SERVICES TERMS OF USE , CONFIDENTIAL INFORMATION, AND ALL OTHER TECHNOLOGY, SOFTWARE, SERVICES, DATA AND MATERIALS PROVIDED BY ABUNDEN ARE PROVIDED “AS IS”, “WHERE IS”, AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS SECTION 6 (WARRANTY), ABUNDEN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, TECHNOLOGY, SOFTWARE, DATA, CONFIDENTIAL INFORMATION, OR OTHER MATERIALS.

7. ABUNDEN INDEMNITY

Abunden shall hold Customer harmless from liability to third parties resulting from infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret, provided Abunden is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Abunden will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Abunden, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Abunden, (iv) combined with other products, Equipment, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with the Agreement. If, due to a claim of infringement, the Services or Software are held by a court of competent jurisdiction to be or are believed by Abunden to be infringing, Abunden may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate the Agreement and Customer’s rights hereunder and provide Customer, as Customer’s sole remedy and Abunden’s sole liability for such termination, a refund of any prepaid, unused fees for the Services calculated as of the effective date of the termination. Abunden’s obligations as set forth in this Section 7 are subject to the other party providing full cooperation in good faith in the defense of any such claim.

8. LIMITATION OF LIABILITY

ABUNDEN AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THE AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, ATTORNEY’S FEES, OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ABUNDEN’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO ABUNDEN THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT ABUNDEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF APPLICABLE LAW LIMITS THE APPLICATION OF THIS SECTION 8, ABUNDEN’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMISSIBLE.

9. MISCELLANEOUS

If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The Agreement is not assignable, transferable or sublicensable by Customer except with Abunden’s prior written consent. Abunden may transfer and assign any of its rights and obligations under the Agreement without Customer’s consent. The Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. The failure of a party to insist upon strict adherence to any term of the Agreement on any occasion shall not be considered a waiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of the Agreement. No agency, partnership, joint venture, or employment is created as a result of the Agreement and Customer does not have any authority of any kind to bind Abunden in any respect whatsoever. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. All notices, including notices of non-renewal, shall be sent to the applicable contact person and address specified on the Order Form or to such other address as the parties may designate in writing. Any notice of material breach will clearly define the breach including the specific contractual obligation that has been breached. The Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions. The parties agree that the federal and state courts located in Harris County, Texas, USA will have exclusive jurisdiction for any dispute arising under, out of, or relating to the Agreement.

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