1. GENERAL.
1.1) This Agreement is comprised of these general terms and conditions (“Terms and Conditions”) and each of the following appendices, each of which is hereby incorporated into and made a part of this Agreement (each, an “Appendix”): (a) Additional Definitions, which is attached hereto as Appendix A; (b) Description of SaaS Solution and Payment Terms, which is provided in the AGREEMENT COVER SHEET;
1.2) Capitalized terms used throughout this Agreement, unless otherwise defined herein, shall have the definitions set forth in Appendix A.
1.3) In the event of any conflict or inconsistencies between these Terms and Conditions and any Appendix, these Terms and Conditions shall prevail and take precedence. For purposes of clarity, any provisions in an Appendix specifying that a provision of the Appendix applies notwithstanding a contradictory provision in these Terms and Conditions, shall not be deemed a conflict.
1.4) The purpose of this Agreement is for Customer to purchase from Consultant the right to access and use the SaaS Solution (defined below), and for Consultant to perform certain services relating thereto.
1.5) The “Software as a Service Solution” or “SaaS Solution” means the computer program resident on Consultant’s servers and referred to by Consultant as “Canary Technologies Digital Authorizations” that performs the Services described in the AGREEMENT COVER SHEET hereto and that may be accessed by End Users through the Internet. For purposes of this Agreement, the SaaS Solution includes, without limitation, any Client Software and the website(s) that provide Customer and End Users access to the SaaS Solution, as such website(s) may be customized for Customer, if so specified herein.
2.1) Consultant shall perform the services described in this Agreement (which includes each Appendix), as required and/or requested by Customer (collectively, the “Services”). The Services include the functionality of the SaaS Solution, and may also include certain installation, implementation and/or other professional services required for access and use of the SaaS Solution, which may be referred to in the AGREEMENT COVER SHEET as “Additional Services.”
2.2) Consultant shall perform the Services and deliver the items and materials, if any (the “Deliverables”) specified in the Appendices in a timely manner in accordance with Customer’s requirements and instructions set forth in the Appendices or otherwise, and to Customer’s reasonable satisfaction and approval. Consultant shall engage no agents or subcontractors to perform the Services without Customer’s prior written consent, and Consultant shall be solely responsible for the work of and payment to, as well as for any breaches of this Agreement by, any such agents or subcontractors.
2.3) Consultant hereby grants to Customer and End Users (as applicable) a nonexclusive, worldwide right to use, access, display, execute and otherwise benefit from the SaaS Solution and Client Software (including any and all updates and modifications thereto), seven (7) days a week, twenty-four (24) hours a day, during the Term (as defined in Section 8.1 below). In addition, Customer shall have the right (upon written notice to Consultant and at no additional charge) to transfer such rights to (i) its affiliates, and/or (ii) any person or entity that has acquired Customer’s rights to the SaaS Solution pursuant to a transfer, sale, spin-off, divestiture, or other disposition by Customer, provided that such acquirer agrees in writing to assume Customer’s obligations hereunder.
2.4) Any and all reports, Deliverables, enhancements, and modifications, including the look and feel (and any drafts of the foregoing), created, developed, or prepared by Consultant, its employees, agents, or subcontractors solely for the benefit of Customer in the course of performing the Services under this Agreement (collectively, “Work Product”) shall be a “work for hire” and belong exclusively to Customer. Consultant (and its agents or subcontractors, as the case may be) assigns to Customer and expressly disclaims any and all right, title and interest in such Work Product. Consultant represents and warrants to Customer that neither the Services, SaaS Solution, Work Product, nor any portion thereof (collectively, the “Materials”), nor any use of the Materials for their permitted or intended purposes, violate, infringe upon, or misappropriate any patent, copyright, trade secret, trade name, or other intellectual property rights, moral rights, or other proprietary rights of any third party (“Infringement”).
2.5) Consultant shall furnish all permits, consents, licenses, equipment, software and supplies necessary to perform the Services, at Consultant’s sole cost. If any Services hereunder are proposed to be provided outside of the boundaries of the United States, it shall be solely the responsibility of the Consultant (at no additional cost to or other responsibility of Customer) to ensure that the Services are performed in such manner so as to not violate any applicable laws (including without limitation, ensuring compliance with all export control restrictions and privacy requirements). If requested by Customer, Consultant shall provide sufficient information to Customer to assure that all Services are undertaken in compliance thereof.
3.1) Consultant shall provide Customer with access to the SaaS Solution by no later than the start date listed on the AGREEMENT COVER SHEET, and in accordance with the terms and conditions set forth in this Agreement. Subject to Consultant’s delivery and/or installation of the SaaS Solution and ongoing performance of the Services in conformance with the provisions of this Agreement, and Customer’s acceptance of the SaaS Solution, Customer shall pay to Consultant the SaaS Solution subscription fee set forth in the AGREEMENT COVER SHEET. Consultant may not increase any fees during the Initial Term of this Agreement.
3.2) Subject to Consultant’s satisfactory performance and completion, and Customer’s acceptance, of any Additional Services, Customer shall pay Consultant the fees set forth in the AGREEMENT COVER SHEET. The total fees and expenses for such Additional Services shall not exceed the aggregate not-to-exceed amount set forth in the AGREEMENT COVER SHEET without the prior written consent of Customer. Each invoice shall describe in reasonable detail the Services performed and associated time, fees and expenses. All time and expenses must be accounted for in writing by Consultant and supported with appropriate documentation. Travel expenses are subject to Customer’s travel policy, which is incorporated herein by reference. Customer shall not be required to pay for any Services, Deliverables, and/or Work Product that, in Customer’s reasonable opinion, do not conform to the terms of this Agreement.
3.3) Consultant shall invoice Customer in accordance with the invoicing schedule set forth in the AGREEMENT COVER SHEET. In the absence of any such schedule, invoices shall be submitted and paid on a monthly basis for the Services performed in the immediately preceding month. Customer shall pay all undisputed invoices within forty-five (45) days after Customer’s receipt thereof.
4. CONFIDENTIALITY.
4.1) Customer (including its affiliates) and Consultant may from time to time disclose to each other (both orally and in writing), in connection with the Software, Equipment or Services provided hereunder, certain financial, technical, legal, marketing, network, and/or other business information, reports, records, or data (including, but not limited to, PII, computer programs, code, systems, applications, analyses, passwords, procedures, output, information regarding software, sales data, vendor lists, customer lists, and other customer-related information, business strategies, advertising and promotional plans, creative concepts, specifications, designs, and/or other material) which the disclosing party deems, and the receiving party should consider, proprietary and/or confidential (and of independent economic value) to the disclosing party (collectively, “Confidential Information”). Customer’s Confidential Information also shall include any proprietary and/or confidential information related to Customer’s affiliates, employees, sales representatives, brokers, and/or customers, as well as any and all content provided by Customer to Consultant with respect to any web-related or electronic Services hereunder. Consultant’s Confidential Information also shall include Consultant’s (and its subcontractors’) Software and/or pre-existing proprietary materials licensed or provided to, or accessed by, Customer hereunder. “Personal Information” or “PII” means any information relating to an identified or identifiable person and that, either by itself or in combination with other pieces of information, identifies, or can be used to identify, an individual. Examples of Personal Information include, but are not limited to, names, phone numbers, addresses, credit card information, social security numbers, and/or account or financial information of Customer’s or its affiliates’ employees, sales associates, brokers, or customers.
4.2) The receiving party agrees to treat all Confidential Information provided by the disclosing party pursuant to this Agreement and any schedules issued hereunder as proprietary and confidential to the disclosing party, and the receiving party shall not (without the prior written consent of the disclosing party) disclose or permit disclosure of such Confidential Information to any third party, provided that the receiving party may disclose, on a need-to-know basis, such Confidential Information to its third party subcontractors who have signed non-disclosure agreements with the receiving party, and/or to its (and, in the case of Customer, to Customer’s affiliates’) current employees, officers, or directors, or legal or financial representatives. The receiving party agrees to safeguard all Confidential Information of the disclosing party with at least the same degree of care (which in no event shall be less than reasonable care) as the receiving party uses to protect its own Confidential Information. The receiving party shall use the disclosing party’s Confidential Information solely for the purpose of fulfilling its obligations under this Agreement. The receiving party further agrees not to use or disclose the disclosing party’s Confidential Information for its own benefit or for the benefit of others, except as otherwise authorized by this Agreement, the applicable schedules, and/or the disclosing party in writing.
4.3) Notwithstanding the foregoing, the parties agree that the following information shall not be deemed Confidential Information, and the receiving party shall have no obligation with respect to any such information (i) Information which is independently developed by the receiving party without any breach of this Agreement by the receiving party, and which can be shown by documentary evidence; (ii) Information which is or becomes in the public domain by no fault or wrongful act of the receiving party; (iii) Information which is known by the receiving party prior to disclosure by the disclosing party; (iv) Information which is disclosed to the receiving party by third party who was not under a similar restriction or obligation of confidentiality to the disclosing party, and without breach of this Agreement; (v) Information which is approved for release by written authorization of the disclosing party and/or the third party owner of the disclosed information; or (vi) Information which is disclosed pursuant to the lawful requirement or order of a court or governmental agency, provided that, upon the receiving party’s receipt of a request for such a disclosure, the receiving party gives prompt notice thereof to the disclosing party (unless such notice is not legally permissible or required under the circumstances) so that the disclosing party may have the opportunity to intervene and contest such disclosure and/or seek a protective order or other appropriate remedy.
4.4) All Confidential Information transmitted or disclosed hereunder will be and remain the property of the disclosing party, and the receiving party shall (at the disclosing party’s election) promptly destroy or return to the disclosing party any and all copies thereof upon termination or expiration of this Agreement and/or the applicable schedule, or upon the written request of the disclosing party. Upon the request of the disclosing party, any such destruction shall be certified in writing by the receiving party.
4.5) Nothing in this Agreement shall be construed to limit or prohibit the receiving party from independently creating or developing (or having created or developed for it), or from acquiring from third parties, any information, products, concepts, systems, or techniques that are similar to or compete with the information products, concepts, systems, or techniques contemplated by or embodied in the disclosing party’s Confidential Information, provided that (in connection with such creation, development, or acquisition) the receiving party does not violate any of its obligations under this Agreement. Notwithstanding the foregoing, the receiving party shall not, nor assist others to, disassemble, decompile, reverse engineer, or otherwise attempt to recreate, the disclosing party’s Confidential Information.
4.6) The Parties acknowledge and agree that, given the unique and proprietary nature of the Confidential Information, monetary damages may not be calculable or a sufficient remedy for any breach of this Section 4 by the receiving party, and that the disclosing party may suffer great and irreparable injury as a consequence of such breach. Accordingly, each Party agrees that, in the event of such a breach or threatened breach, the disclosing Party shall be entitled to seek equitable relief (including, but not limited to, injunction and specific performance) in order to remedy such breach or threatened breach. Such remedies shall not be deemed to be exclusive remedies for a breach by the receiving party but shall be in addition to any and all other remedies provided hereunder or available at law or equity to the disclosing party.
4.7) Notwithstanding the foregoing, to the extent an individual would be considered an employee pursuant to 18 U.S.C. §1833(b)(4), such individuals shall not be held criminally or civilly liable under any U.S. Federal or State trade secret law for the disclosure of Confidential Information if such disclosure is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to that individual’s attorney, if such disclosure of Confidential Information is made solely for the purpose of reporting or investigating a suspected violation of law or if the disclosure is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Moreover, an individual who files a lawsuit for retaliation claiming that retaliation against said individual for reporting a suspected violation of law may disclose Confidential Information to his or her attorney and may use Confidential Information in the court proceeding, provided any document containing the Confidential Information is filed under seal and the individual does not disclose the Confidential Information, except pursuant to court order.
5.1) During the course of providing the Services, Consultant may be provided access to or otherwise obtain or handle Customer’s information. Consultant agrees to protect all Confidential Information as detailed in this Section 5.
5.2) Consultant shall not be entitled to use Customer’s information for its own purposes, and may only use or otherwise handle Customer’s information for the sole purpose of providing the Services. Consultant acknowledges that Customer has the right to monitor Consultant’s activities while Consultant is in Customer’s systems.
5.3) Consultant shall at all times comply with all applicable privacy laws and Customer’s and its affiliates’ (including but not limited to Customer’s property manager) reasonable guidelines for privacy, information protection and data and systems security.
5.4) Consultant shall (and shall ensure that any person providing the Services on Consultant’s behalf shall) i) Maintain a written information security program in accordance with industry best practice that contains administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Customer’s information; ii) Access and use Customer’s information only in accordance with the written instructions of Customer; iii) Not disclose Customer’s information to any person (including Consultant’s affiliates or a potential subcontractor or service provider) unless Customer has given its prior written consent to such disclosure and Consultant can ensure that such person is bound by the same obligations as Consultant under this Section 5; iv) Promptly (but in no event later than 24 hours after an Information Security Incident) notify Customer if Consultant has reason to believe that there has been any accidental or unauthorized access, acquisition, disclosure, use, loss, corruption, damage, destruction or loss of availability or integrity of Customer’s information handled by Consultant (“Information Security Incident”); v) In the event of any Information Security Incident, cooperate fully with Customer to limit the unauthorized access, disclosure or use of Customer’s information, seek the return of any such Information, and assist in providing notice relating to the Information Security Incident to individuals or third parties if requested by Customer and notwithstanding any liability caps contained hereunder, the cost of providing such notices shall be at the sole cost and expense of Consultant; and vi) Assist and support Customer in the event of an investigation by a regulator, data protection authority, judicial process or similar authority, if and to the extent that such investigation relates to Customer’s information handled by Consultant on behalf of Customer.
5.5) Consultant shall comply with all requirements prescribed by all laws relating to the protection of information that identifies or can be used to identify an individual that apply with respect to Consultant’s handling of Customer’s information. Consultant shall comply with industry best practices and all applicable privacy and data protection laws, rules, regulations, statutes and guidelines (including without limitation, the requirements for service providers set forth in Massachusetts 201 CMR 17.00: Standards for the Protection of Personal Information of Residents of the Commonwealth, and other similar laws and regulations that prescribe requirements applicable to service providers of Personal Information, as may be enacted from time to time). In addition, Consultant shall not cause Customer to be in noncompliance with any of the policies, procedures, provisions, laws, standards, or rules described above in this paragraph.
5.6) To the extent Consultant stores, processes, accesses or transmits payment card “Account Data”, and specifically “Cardholder Data” and “Sensitive Authentication Data” (as defined by the Payment Card Industry Data Security Standard, hereafter “PCI DSS”) of Customer’s or its affiliates’ employees or customers, Consultant represents and warrants that it stores, transmits and processes such data in compliance with PCI DSS requirements as well as any other applicable payment standards, or applicable laws and regulations. Consultant further represents and warrants that it shall continue to be fully compliant with all such standards, laws and regulations for all times that it stores, processes, accesses, or transmits payment card “Account Data”. Consultant further acknowledges that it is Consultant’s ongoing responsibility hereunder for securing Cardholder Data and Sensitive Authentication Data in accordance with the PCI DSS. Should Consultant fail to maintain compliant practices in accordance with this section, such failure shall be deemed a material breach of this Agreement. Consultant shall, no later than the anniversary of this Agreement’s effective date for each year this Agreement remains in effect, provide a copy of its PCI DSS compliance documentation to Customer, if applicable.
5.7) At the request of Customer, Consultant and any affiliate or subcontractor of Consultant will enter into a data processing agreement that incorporates the European Commission Standard Contractual Clauses between controllers and processors, or any similar agreement relating to other countries, with Customer affiliates in order to allow Personal Information to be transferred to Consultant and any affiliate or subcontractor of Consultant by Customer’s affiliates.
5.8) With respect to Personal Information transferred from one country (the “Exporting Country”) to another country (i.e., the importing country), Consultant acknowledges that an additional mechanism may be required by the applicable regulatory authority of the Exporting Country to permit the data to be transferred. Upon Customer’s request without undue delay, Consultant and any affiliate or subcontractor of Consultant shall: (i) enter into additional agreements or an amendment to this Agreement with Customer and/or its affiliates, as required to comply with local law or regulation, prior to receiving Personal Information from a specific location; (ii) enter into a separate data processing agreement(s) with Customer and/or its affiliate(s) that incorporates the most current version of the European Commission’s Standard Contractual Clauses between controllers and processors, and/or any similar data processing agreements approved by an Exporting Country’s applicable regulatory authority, in order to allow Personal Information to be transferred by or on behalf of Customer and/or its affiliates to Consultant and any affiliate or subcontractor of Consultant; and/or (iii) put in place another adequacy mechanism approved by the Exporting Country in order to allow Personal Information to be transferred by or on behalf of Customer and/or its affiliates to Consultant and any affiliate or subcontractor of Consultant.
5.9) Upon termination or expiration of this Agreement for whatever reason, or upon request by Customer, Consultant shall immediately cease to process and otherwise handle Customer’s information and shall promptly return to Customer all such Information, or destroy the same, in accordance with such instructions as may be given by Customer at that time. The obligations set out in this Section shall remain in force notwithstanding termination or expiration of this Agreement.
5.10) At no time shall Consultant acquire any ownership, license, rights, title or other interest in or to Customer’s Confidential Information, all of which shall, as between Customer and Consultant, be and remain the proprietary and Confidential Information of Customer.
5.11) For the purpose of auditing Consultant’s compliance with its obligations under this Agreement, Consultant shall provide to Customer, its authorized representatives and such independent inspection body as Customer may appoint, on reasonable notice: (a) access to Consultant’s information processing premises and records; (b) reasonable assistance and cooperation of Consultant’s relevant staff; and (c) reasonable facilities at Consultant’s premises.
5.12) In the event that Consultant is unable to comply with the obligations stated in this Section 5, Consultant shall promptly notify Customer in writing, and Customer shall then be entitled (at its option) to suspend the transfer of Customer’s information to Consultant, require Consultant to cease using or otherwise handling Customer’s information and/or immediately terminate this Agreement.
6.1) Consultant acknowledges and agrees that upon any Guest User utilizing the SaaS Solution, Consultant establishes a direct relationship with such Guest User outside the scope of this Agreement or any other agreement, and that the Consultant is responsible to each Guest User for the protection of the Guest User’s Data in its possession. Consultant further acknowledges and agrees that Customer and/or its affiliates do not bear any responsibility with respect to Consultant’s performance of the Services and Consultant’s provision of the SaaS Solution other than outlined in this Agreement, and that Customer and/or its affiliates do not bear any responsibility for the protection of any Data not in its possession, or for a Guest User’s use of the Services or SaaS Solution. Consultant must disclose to each Guest User, at the time and in a manner acceptable to Customer and/or its affiliates and Consultant, that such Guest User is utilizing Consultant’s services subject to Consultant’s (and not Customer’s or its affiliates’) terms and conditions, as well as Consultant’s (and not Customer’s or its affiliates’) privacy policy. Additionally, the requirements of Section 5.5 shall apply to this Section.
6.2) Notwithstanding anything to the contrary in this Agreement, Consultant shall indemnify, defend and hold harmless Customer, its affiliates and its property manager (including each of their respective officers, directors, employees, agents, successors and permitted assigns thereof) from and against any and all third party non-Indemnitee (as described herein) claims relating to any Guest User’s use of the SaaS Solution as well as any and all claims arising out of or in connection with Consultant’s breach of its obligations set forth in this Agreement regarding compliance with laws, confidentiality, privacy, and/or information security. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL NOT APPLY TO CLAIMS AGAINST WHICH CONSULTANT HAD AGREED TO INDEMNIFY CUSTOMER, ITS AFFILIATES, AND/OR ITS PROPERTY MANAGER PURSUANT TO THIS PARAGRAPH.
7.1) Consultant represents and warrants to Customer that (i) it possesses the requisite expertise, knowledge, and skills with respect to the Services, Deliverables and SaaS Solution, (ii) it is aware that Customer is relying upon Consultant’s skill and judgment in providing the Services, Deliverables and SaaS Solution, (iii) it has all rights, approvals, and/or licenses necessary to provide the Services, Deliverables, SaaS Solution and Work Product hereunder, (iv) the Services, SaaS Solution and Deliverables shall be provided in a professional and timely manner, (v) it shall not access or remove from Customer’s premises any Confidential Information, computer systems, and/or other property of Customer and/or its affiliates without Customer’s prior written consent, (vi) it shall at all times comply with the confidentiality, privacy and information security obligations set forth in Sections 4 and 5 of this Agreement, (vii) the SaaS Solution does not contain (and Consultant shall not introduce into Customer’s or its affiliates’ computer systems, databases, or software), any virus or any other contaminants (for example, in the form of codes, commands, instructions, devices, techniques, bugs, web bugs, or design flaws) that may be used to access, alter, delete, threaten, infect, assault, vandalize, defraud, disrupt, damage, disable, inhibit, or shut down the SaaS Solution, Services, Deliverables or Customer’s (or its affiliates’) computer systems, databases, or other Customer information, software, or property, in a manner other than in accordance with the terms of this Agreement, (viii) the Services, Deliverables, SaaS Solution and Work Product, as well as Consultant’s provision thereof and its performance of the obligations contained in this Agreement shall at all times be in compliance with any and all applicable international, federal, state and local laws, statutes, rules, orders, and regulations, and (ix) if the Services involve the provision by Consultant of certain maintenance and/or support with respect to (and/or the accessing by Consultant of) any third party software, Consultant is an authorized service provider for such software (which authorization can be shown by documentary evidence), and/or has otherwise obtained the prior written consent of the applicable third party software licensor with respect to such maintenance, support, and/or access.
7.2) Consultant shall indemnify, defend, and hold Customer (including its property manager, if any) and each of their respective owners, partners, subsidiaries, affiliates, franchisees, successors and assigns, and each of such persons’ or entities’ officers, directors, agents, subtenants, suppliers, customers, guests, residents, visitors, licensees, invitees, permittees and employees (collectively referred to as the “Indemnitees”) harmless from and against any and all losses, liabilities, damages, claims, costs (including, but not limited to, cost of cover), penalties, expenses, and fees (including, but not limited to, reasonable attorneys’ fees, disbursements of counsel, and costs of investigation, litigation, third party discovery, and settlement, incurred in any action or proceeding between Customer and Consultant or between Customer and any third party) (collectively, “Losses”) resulting from, arising out of or in any way connected with this Agreement, including without limitation any Infringement claims and/or the Consultant’s (and/or, from its agents’ or third party subcontractors’, licensors’ or manufacturers’) (i) breach of Sections 4, 5, 6.1(iii), 6.1(v), 6.1(vi), 6.1(vii), and/or 6.1(viii) hereof, and/or (ii) willful misconduct and/or intentional or grossly negligent actions hereunder, (iii) a violation or breach of any of the terms and conditions of this Agreement, (iv) a violation of, or noncompliance with, applicable laws or regulations, including without limitation privacy or data protection laws or regulations, and/or any privacy or other policy applicable to Consultant’s business; (v) in connection with bodily injury or death or damage to real or personal property by Consultant or its subcontractors; (vi) in connection with the products and/or services provided by Consultant or its subcontractors; and/or (vii) any act or failure to act by Consultant.
7.3) Customer shall indemnify, defend and hold harmless Consultant (and its respective officers, directors, employees, agents, successors and permitted assigns thereof) from and against any and all Losses arising out of or in connection with (i) Customer’s breach of its obligations set forth in Section 4 hereof, and/or (ii) Customer’s willful misconduct and/or intentional or grossly negligent actions or breaches hereunder.
7.4) The indemnified Party shall provide the indemnifying Party with prompt written notice of any such claims, and the indemnifying Party shall have the right to control and direct the investigation and defense thereof and related settlement negotiations. The indemnifying Party shall not settle or compromise any claim, or consent to the entry of any judgment, that admits to fault, culpability or failure on the part of the indemnified Party without the indemnified Party’s prior consent. The indemnified Party shall reasonably cooperate with the indemnifying Party in connection with the foregoing. The indemnified Party may, at its sole option and at its own expense, participate in the claim or action with its own separate legal counsel, in which event the cost of such participation (including the cost of such separate legal counsel) shall be borne by the indemnified Party. The exercise by the indemnified Party of its option to participate in the claim or action and/or to select its own separate legal counsel shall in no way limit or modify the indemnifying Party’s obligations set forth above in this paragraph. With respect to any Infringement claim hereunder, and notwithstanding the foregoing, if such Infringement claim may result in equitable relief being granted against Customer, Customer shall have the option, at its sole discretion and cost, of controlling and directing the investigation, defense, and settlement to the extent applicable to Customer. Consultant shall not agree to any settlement of an Infringement claim granting equitable relief against Customer without Customer’s prior written consent.
8) LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE SPECIFIED BELOW IN THIS PARAGRAPH, NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOST SAVINGS) ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES, AND EACH PARTY’S AGGREGATE LIABILITY HEREUNDER SHALL IN NO EVENT EXCEED THE TOTAL FEES PAID OR OWING BY CUSTOMER TO CONSULTANT HEREUNDER. THIS LIMITATION OF LIABILITY APPLIES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY SET FORTH ABOVE IN THIS PARAGRAPH SHALL NOT APPLY TO LOSSES AGAINST WHICH THE PARTIES HAVE AGREED TO INDEMNIFY EACH OTHER PURSUANT TO THIS AGREEMENT.
9) ASSIGNMENT. Neither Party may assign, transfer, delegate, or pledge this Agreement (including any schedules hereunder) and/or any of its obligations hereunder to any third party without the prior written consent of the other Party. Notwithstanding the foregoing, Customer may, without the consent of Consultant and at no additional charge, assign, transfer, delegate, or pledge this Agreement in whole or in part (including any schedules hereunder) and/or any of its rights or obligations hereunder in whole or in part to any of its affiliates or in connection with a consolidation, merger, sale, divestiture, or spin-off of substantially all of its (or any of its affiliates’, business units’ or business lines’) assets, provided that the assignee or successor in interest assumes in writing the obligations of Customer hereunder. Subject to the provisions set forth above in this Section 8, this Agreement (including any schedules hereunder), and the covenants and agreements herein contained, shall inure to the benefit of and be binding on the parties hereto and their respective permitted successors and assigns.
10.1) The term of this Agreement shall commence in accordance with the AGREEMENT COVER SHEET and unless earlier terminated in accordance with the terms hereof, shall continue for twelve months from the Acceptance Date (the “Initial Term”). Upon the conclusion of the Initial Term or any applicable renewal period (each, a “Renewal Term” and together with the Initial Term, the “Term”), this Agreement will expire unless Customer provides Consultant with written notice of renewal for an additional annual period. Customer shall have the option to renew this Agreement for additional annual periods on the terms and conditions contained in this Agreement, for as long as Consultant is generally offering the applicable services and/or products to its customers.
10.2) Customer may terminate this Agreement at any time without cause by providing no less than two (2) days’ prior written notice to Consultant, provided that Customer shall be obligated to pay to Consultant all fees and expenses relating to those Services satisfactorily performed by Consultant prior to such termination. Either Party may terminate this Agreement if the other Party materially breaches any of the terms, conditions, or obligations set forth in this Agreement and fails to correct such breach within fifteen (15) days (or such other period of time as mutually agreed upon in writing between the parties) following the breaching Party’s receipt of written notice of such breach. In the event that Customer terminates this Agreement as a result of Consultant’s material breach, Customer shall have no further payment liability or obligation whatsoever to Consultant hereunder, and Consultant shall (in addition to any and all other remedies that may be available to Customer) promptly refund to Customer (a) a prorated portion of any fees paid to Consultant hereunder for access and use of the SaaS Solution and related maintenance and support Services, and (b) any and all Service fees paid in advance by Customer for those Services, Deliverables, or Work Product not performed or delivered to Customer’s reasonable satisfaction and approval and in accordance with the terms and conditions of this Agreement.
12.1) At all times throughout the Term, Consultant shall (or in the case of subcontractors, Consultant shall cause its subcontractors to) keep in full force and effect and maintain, at no additional cost to Customer, the following policies of insurance:
12.2) Commercial (Comprehensive) General Liability Insurance, including coverage for independent contractors, personal or bodily injury, products liability, premises/operations, completed operations, and broad form property damage) with combined single limits of not less than five million dollars ($5,000,000.00) per occurrence;
12.3) Contractual Liability Insurance in an amount not less than one million dollars ($1,000,000.00) per occurrence;
12.4) Workers’ Compensation Insurance (in compliance with State and Federal laws) covering all of Consultant’s (and/or its subcontractors’) employees engaged in the performance of Services hereunder, and Employers’ Liability Insurance with a limit of not less than one million dollars ($1,000,000.00);
12.5) Commercial Business Automobile Liability Insurance covering all owned, non-owned, leased, and hired vehicles, and providing coverage for bodily injury and property damage liability with combined single limits of not less than two million dollars ($2,000,000.00) per occurrence;
12.6) Professional Liability and Errors and Omissions Liability Insurance covering acts, errors, omissions, and equipment/machine malfunctions arising out of Consultant’s (or its subcontractors’) operations or Services in an amount not less than five million dollars ($5,000,000.00) per occurrence;
12.7) Crime Insurance (including Fidelity Bond, Employee Dishonesty, and Computer Fraud Coverage) covering losses arising out of or in connection with any fraudulent or dishonest acts committed by Consultant’s (or its subcontractors’) personnel, acting alone or with others, with a limit of not less than two million dollars ($2,000,000.00); and
12.8) For those Services involving the provision by Consultant of network administration or programming services and/or access to Customer’s systems, data or databases: Cyber Risk Insurance covering third party liability, errors, omissions, cyber extortion and terrorism, and identity theft, with a combined single limit of not less than five million dollars ($5,000,000.00) per occurrence.
12.9) Such policies shall name Customer and its Indemnitees, as additional insureds As Their Interest May Appear (ATIMA), and the insurance afforded to Customer and its Indemnitees thereunder shall be primary for all purposes. All policies required by this Agreement shall be written by insurance carriers who are rated A- or better by A.M. Best. Such insurance requirements shall not be deemed as a limitation of Consultant’s liability under this Agreement.
12.10) Simultaneously with the execution of this Agreement, and each time a change is made in any insurance policy or insurance carrier, Consultant will furnish to Customer a certificate of insurance evidencing compliance with this Section 11 (including evidence of renewal of insurance) and the named insured and additional insureds. Failure of Customer to demand such certificates or other evidence of full compliance with these insurance requirements, or failure of Customer to identify a deficiency from evidence that is provided, shall not be construed as a waiver of obligation to maintain such insurance. All policies shall provide that the insurer waives any right of subrogation against Customer and its Indemnitees, and their respective officers, directors, employees and agents.
13. FCPA AND BRIBERY ACT
12.1) Customer and Consultant each hereby represents warrants and covenants that in carrying out its responsibilities under this Agreement it shall comply with all anti-corruption laws and regulations to which it is subject, including, as applicable, the United States Foreign Corrupt Practices Act of 1977, as amended (“FCPA”) and the UK Bribery Act of 2010 (“Bribery Act”).
12.2) Customer and Consultant (and its Associated Parties) each represents, warrants and covenants that neither has taken nor will take any action that might cause the other Party to violate the FCPA, the Bribery Act or any other applicable anti-corruption laws and regulations. “Associated Parties” means in relation to Consultant, a person who performs any services for or on behalf of Consultant in any capacity including, without limitation, directors, officers, employees, agents, subsidiaries, representations and subcontractors of Consultant.
12.3) Neither Customer nor Consultant (and its Associated Parties) will authorize, offer, give or agree to offer or give, directly or indirectly, any payment, gift or other advantage with respect to any activities undertaken relating to this Agreement which: (i) is intended to, or does, influence any person to act or reward any person for acting in breach of an expectation of good faith, impartiality or trust, or which it would otherwise be improper for the recipient to accept; (ii) is made to or for the benefit of a public official, or to any person while knowing or being aware of a high probability that all or a portion of the payment, gift or other advantage will be offered or given to a public official, with the intention of influencing any act or decision of the public official in its official capacity, including such public official to use its influence to affect any act or decision of any governmental authority, or securing an improper advantage; or (iii) would otherwise violate applicable anti-corruption laws and regulations.
12.4) Customer and Consultant each further represents, warrants and covenants to maintain and retain at its normal place of business, detailed accurate and up-to-date books and records of account showing all payments made and received in connection with this Agreement, comply with applicable anti-corruption laws and regulations.
13.1) In performing the obligations set forth in this Agreement, Customer and Consultant (and its Associated Parties) each shall at all times comply with the economic and trade sanctions administered by the United States Office of Foreign Assets Control (“OFAC”), including all Executive Orders and implementing regulations.
13.2) Customer and Consultant (and its Associated Parties) each represents and warrants that neither: (i) is owned or controlled by, any person or entity identified by OFAC’s Specially Designated Nationals and Blocked Persons List (“OFAC Blocked Persons”); or (ii) is organized under the laws of a jurisdiction subject to comprehensive OFAC sanctions.
13.3) Customer and Consultant (and its Associated Parties) each represents and warrants that neither is acting on its behalf in the conduct of fulfilling its obligations under this Agreement shall allow, facilitate, or effect any transactions or services, including without limitation provision of any travel, hospitality or ancillary services to any persons in violation of any United States economic and trade sanctions, including but not limited to restrictions against transactions for nationals or residents of Iran, Syria, Sudan, Crimea and North Korea, or any services to, or from any such sanctioned country.
13.4) No part of any payments made under this Agreement will constitute funds obtained: (i) on behalf of any OFAC Blocked Persons, directly or indirectly, in connection with any investment, or any transactions, or dealings with, or any contact with any OFAC Blocked Persons, or (ii) in violation of any United States economic sanctions and/or embargo.
14. TRADE CONTROLS
14.1) Customer and Consultant each acknowledge that any Materials provided by one Party (“Providing Party”) to the other Party (“Receiving Party”) under this Agreement may be subject to the export control laws and regulations of the United States or other applicable jurisdictions which may prohibit export or re-export and require government authorization prior to export or re-export.
14.2) Customer and Consultant each represent and warrant that it shall comply with export control laws and regulations of the United States and other jurisdictions applicable to the Materials received under this Agreement.
14.3) The Party that exports or re-exports the Materials shall serve as the exporter of record and represents and warrants that it shall be responsible for determining the requirements and obtaining all approvals, authorizations, consents or licenses under export control laws and regulations of the United States and other applicable jurisdictions, prior to the export or re-export of such Materials under this Agreement.
14.4) The Providing Party shall, as soon as reasonably practicable, provide information and assistance reasonably requested by the Receiving Party to obtain any export approvals, authorizations, consents or licenses required for the export or re-export by the Receiving Party of such Materials provided under this Agreement.
15. MISCELLANEOUS.
In the event that Consultant is creating, customizing, and/or hosting on behalf of Customer, a website utilizing the SaaS Solution for access and use by Customer’s customers, the additional terms and conditions set forth in Appendix F (Customized Website Terms and Conditions) shall apply.
15.1) Only the provisions of this Agreement shall apply to Customer and End Users for access to and use of the SaaS Solution.
15.2) Consultant may not delegate, pledge, assign or transfer this Agreement and/or any of its obligations hereunder to any third party without the prior written consent of Customer.
15.3) This Agreement shall be governed by the laws of the state in which the Hotel is located, without reference to such state’s conflicts of law provisions. Any dispute arising out of or relating to this Agreement will be resolved exclusively by binding arbitration to be conducted within the state in which the Hotel is located in accordance with the then in effect Commercial Arbitration Rules of the American Arbitration Association.
15.4) The provisions, terms, and conditions of this Agreement represent the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof, and supersede any and all prior and contemporaneous agreements, understandings, documents, negotiations, and/or discussions (whether oral or written) between the Parties. Unless otherwise set forth in an applicable schedule, as between Consultant and Customer, only the provisions of this Agreement will apply to Customer, and any other “privacy policy,” “terms of use,” or “click to accept” agreement included with, or as part of, the Services shall not apply irrespective of whether Customer clicks or otherwise accepts such other terms. No supplement, amendment, or modification to this Agreement shall be valid, enforceable, or binding upon the Parties unless made in writing and signed by an authorized representative of both Parties. For the avoidance of doubt, as between Consultant and Customer, only the provisions of this Agreement shall apply to Customer and End Users for access to and use of the SaaS Solution, and any other “privacy policy,” “terms of use” or “click to accept” agreement included with, or as part of, the SaaS Solution shall not apply irrespective of whether Customer or any End User clicks or otherwise accepts such other terms.
15.5) Any provision of or obligation under this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any such termination or expiration, and shall continue in full force and effect. In addition, all provisions of this Agreement shall survive the termination or expiration of this Agreement to the fullest extent necessary to give the parties the full benefit of the bargain expressed herein and of the intent contemplated hereunder.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly authorized representatives effective as of the Effective Date.
SHORT-FORM SAAS AGREEMENT
1) “Acceptance Date” means the date upon which Customer provides Consultant its written acceptance of the SaaS Solution.
2) “Business Systems” include, but are not limited to, mainframe computers and terminals, distributed servers, network devices, communication equipment, host or server computers (whether stand-alone or networked), desktops, laptops, software, hand held and other wireless devices (including iPads and Tablets) and personal digital assistants (e.g. BlackBerry), removable electronic media such as USB devices, thumb drives, blue tooth and blue-ray discs, any communications devices, all internal and external communications networks (for example, Internet, Intranet, commercial on-line services, WiFi, VPN, e-mail systems, electronic public folders, and IM programs) that may be accessed directly or indirectly from Customer’s computers, monitors, docking stations, telephones, headsets, voicemail, copy machines, storage and printing devices, facsimile machines, cameras, video conferencing facilities and other external links, whether on-site, mobile or remote, physical storage systems, and all electronic and analog devices, software, and means of electronic, analog, or physical communication or storage provided or maintained by Customer and/or its service providers for business use, or on which any business information is stored, processed, or transmitted. Customer Business Systems may also include home or personal computers, laptops, phones, and any other personal communications devices, software, data files or applications and networks, when such systems are used to perform Customer business, and/or if those devices are used to store, process, or transmit Customer business information.
3) “Client Software” means a computer application that is executed on the End User computer system other than a web browser that enables the End User to effectively utilize the SaaS Solution, if any.
4) “End User” means a person who is authorized by Customer, or who is otherwise permitted under this Agreement, to access and use the SaaS Solution.
5) “Guest User” means Customer’s and/or its affiliates’ guests that utilize the SaaS Solution.
6) “Guest User Data” means any data associated with the Guest User’s use of the SaaS Solution, including but not limited to Personal Information, contact information, mobile phone number, content of text messages or other communications between Customer and/or its affiliates and Guest Users, if applicable.
7) “Information Security Incident” means: (a) the loss or misuse (by any means) of Confidential Information; (b) the inadvertent, unauthorized, and/or unlawful Processing, disclosure, access, alteration, transfer, sale or rental, destruction, use, or corruption as a result of unauthorized access, of Confidential Information; or (c) any other act or omission that compromises or threatens to compromise the security, confidentiality, or integrity of Confidential Information coupled with an actual or threatened unauthorized disclosure of that Confidential Information.
8) “Personal Information” or “PII” means any information relating to an identified or identifiable person and that, either by itself or in combination with other pieces of information, identifies, or can be used to identify, an individual. Examples of Personal Information include, but are not limited to, names, phone numbers, addresses, credit and/or other payment card information, social security numbers, and/or account or financial information of Customer’s or its affiliates’ employees, sales associates, brokers, or customers.
9) “Privacy Notice” means notice provided to affected individuals advising that their PII is being collected, processed, stored, used or disclosed, if and when required by applicable law. Such notices will disclose information such as how PII will be collected, used or disclosed.
10 “Process,” “Processing” or “Processed” means any operation or set of operations that is performed with or upon Confidential Information, whether or not by automatic means, including, but not limited to, receiving, collecting, recording, organizing, storing, accessing, transmitting, adapting, altering, retrieving, consulting, using, disclosing, disseminating, making available, aligning, combining, blocking, deleting, erasing or destroying.
11) “Server” shall mean the server(s) on which the SaaS Solution is hosted.
12) “Strong Encryption” means the use of a algorithmic process to transform data into a form in which there is an extremely low likelihood or probability of understanding or assigning meaning to the information without use of a confidential process or key, and which meets or exceeds the definition of “Strong Cryptography” as that term is defined under the Payment Card Industry Data Security Standard.
13) “Third-Party Host” means Consultant’s third-party subcontractor that owns and/or maintains the Server, as may be permitted by Customer pursuant to the terms of this Agreement.
14) “Website Content” means all means all literary, audiovisual, pictorial (including without limitation video (still and moving)), graphic, photographic or other creative works; musical compositions and sound recordings whether or not coupled with a visual image; and all other works of authorship, derivative works, and other content, including without limitation, charts, designs, and product or other information which is contained within and/or displayed on the SaaS Solution.
15) “Customer Data” means data and information (a) to which Consultant has access in connection with the provision of the Services, (b) processed, prepared and/or generated by and/or through the SaaS Solution, including without limitation, credit and/or other payment card numbers, scope of licenses, description of the content of images, and metadata information, and/or (c) about or relating to any End User of the SaaS Solution.