SAAS SERVICES ORDER FORM
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Customer: {{customer}} |
Contact: {{contact}} |
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Address: {{address}} |
Phone: {{phone}} |
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E-Mail: {{email}} |
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Services: {{services}} (the “Service(s)”).
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Services Fees: {{serviceFees}} |
Initial Service Term: {{initialTerm}} {{initialTermUnit}}
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Service Capacity: {{serviceCapacity}}
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Implementation Services: Company will use commercially reasonable efforts to provide Customer these services:
{{implementationServices}}
Customer shall pay Company the Implementation Fee in accordance with the terms herein. Implementation Fee (one-time): {{implementationFeeAmount}}
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SAAS SERVICES AGREEMENT
This SaaS Services Agreement (together with any and all exhibits, appendices and/or schedules attached hereto, the "Agreement") is entered into as of __________________________________ (the “Effective Date”) between Simply Compete, Inc. a Delaware Corporation in the United States (“Company”), and the Customer listed above (“Customer”). This Agreement includes and incorporates the above Order Form, as well as the attached Terms and Conditions, and contains, among other things, warranty disclaimers, liability limitations and use limitations.
Simply Compete, Inc.: [Customer]:
By: By:
Name: Sujay Karve Name:
Title: CEO Title:
TERMS AND CONDITIONS
4.1 The Customer acknowledges and agrees that all software features in the Services specified herein will be developed and improved upon on an ongoing basis by the Company and that Customer acknowledges that the contemplated features may not be complete as of the Effective Date of this Agreement. The Company agrees to use its reasonable best efforts to develop any such features over a reasonable period during the term of this Agreement.
5.5 If the Services are held to infringe or is believed by Company to infringe on any third party proprietary rights, Company shall have the option, at its expense, to either replace or modify the Services to be non-infringing, or to obtain for Customer a license to continue using the Services from the owner of such proprietary rights. If it is not commercially reasonable to perform either of the foregoing options, then the Company may terminate the Services and refund the fees for the Services. This Section 5.5 states Company’s entire liability and Customer’s exclusive remedy for any claim of infringement.
6.2 Fees defined in the Order Form provide the Customer with limited data storage, email, and push notification capacity (“Included Capacity”). If Customer’s use of the Services results in data storage, email, and/or push notification capacity in excess of Included Capacity (“Overage”), then customer shall pay additional fees (“Overage Fees”) as specified in Exhibit A.
6.3 All fees are specified in the Order Form. All fees are in U.S. dollars or Euros of the European Union, are non-refundable, and do not include any applicable taxes, which are the sole responsibility of the Client.
7.2 If Company commences Services for the Customer prior to the Effective Date, or continues to provide Services to Customer after the termination or expiration date of the Agreement, all provisions of this Agreement shall apply to such services and work products including without limitation Section 2 (Restrictions and Responsibilities), Section 5 ( Confidentiality; Proprietary Rights), and Section 6 (Payment of Fees).
7.3 After the Initial Service Term, the Fees will increase by 3%, rounded up to the closest higher 10 Cents amount, every year as long as the CPI does not increase by more than 3.5% as of February 1st of that year. If the CPI increases by more than 3.5% then the Fees will increase by the same percentage as the CPI for that year, rounded up to the closest higher 10 Cents amount. The CPI is the Consumer Price Index for All Urban Consumers (CPI-U); U.S. City Average; All items, not seasonally adjusted, 1982–1984=100 reference base as provided by the United States Bureau of Labor Statistics.
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, THE SERVICES, ACCESS THERETO, AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, AND THE COMPANY AND ITS AFFILIATES AND AGENTS: (A) DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM , ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) DO NOT WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL CONTENTS OR COMPONENTS; (C) ARE NOT RESPONSIBLE FOR CUSTOMER DATA AND HAS NO LIABILITY FOR LOST DATA; (D) SHALL IN NO EVENT BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE (INCLUDING LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY, OR FAILURES, DELAYS OR INTERRUPTIONS OF THE APPLICATION. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES. IN SUCH JURISDICTIONS, COMPANY’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
9.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY 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 THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY 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 OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 Except for any breach of its nondisclosure obligations (Section 4), the aggregate and cumulative liability of Company and its suppliers for damages hereunder shall in no event exceed the amount of fees paid by Customer in the form of the most recent monthly payment received by Company, under this Agreement. Except for any breach of its obligations to comply with the Restrictions and Responsibilities (Section 2), Exclusivity (Section 3), the Confidentiality; Proprietary Rights (Section 5), and its payment obligations (Section 6), Customer’s aggregate and cumulative liability for damages hereunder shall in no event exceed the total of the aggregate amount of fees paid by Customer under this Agreement.
10.1 If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction or by operation of law, the remaining terms and provisions of this Agreement will be unimpaired, and the invalid term or provision will be replaced by such valid term or provision that adequately covers the intention of the parties underlying the invalid term or provision. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This 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 this Agreement, and the SC Customer Terms of Service as published and modified by Company from time to time, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein (“Superseding Agreement”). No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind the Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this 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. This Agreement shall be governed by the laws of Singapore without reference to its conflict of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of thirty (30) days, then any unresolved controversy or claim arising out of or relating to this Agreement shall be settled in accordance with arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC Rules") for the time being in force, which rules are deemed to be incorporated by reference in this clause. The language of the arbitration shall be English. The parties agree to submit disputes to a sole Arbitrator to be mutually appointed by both the parties. The parties further agree that the arbitration proceedings shall be conducted by telephone or by other means of remote electronic communication as governed by the SIAC Rules. The arbitral award shall be final and binding upon both Parties.
10.2 The Parties agree that they will not, whether orally or in writing, make any disparaging statements or comments, either as fact or as opinion, in any medium or forum whatsoever, about each other or of any of each other’s products and services, skills, suitability for employment, business, technologies, market position, agents, representatives, members, directors, officers, managers, shareholders, co-founders, investors, attorneys, employees, vendors, affiliates, successors or assigns, or any person acting by, through, under or in concert with any Party; provided, however, that the obligation of non-disparagement under this section shall not apply: (a) to communications between a Party and such Party’s attorneys, accountants, consultants, and other professionals in connection with obtaining their services; (b) to communications or disclosures required to be made under applicable law; or (c) to any communications protected by any privilege, including, without limitation, the attorney-client privilege.
10.3 This Agreement may be executed in counterparts, which taken together shall be considered one original agreement. The exchange of a fully executed agreement (in counterparts or otherwise) by fax shall be sufficient to bind the parties to the terms and conditions of this Agreement.
10.4 Except for Customer’s obligations to make payments as set forth in this Agreement, each party shall be excused from performance for any period during which, and to the extent that, it or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control and without its fault or negligence. Such acts shall include, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental laws and regulations imposed after the fact, fire, communication line failures, power failures, earthquakes, floods or other natural disasters (a "Force Majeure Event"). Delays in delivery or in meeting completion dates due to Force Majeure Events shall be automatically extended for a period of time equal to the duration of such events.
10.5 This Agreement is in the English language. Any party may translate this Agreement into any other language for their convenience. In the event of a conflict between this Agreement and any translation thereof, the terms of this shall prevail.
10.6 The parties shall work together in good faith to issue at least one mutually agreed upon press release within 30 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date stated above.
Simply Compete, Inc.: [Customer]:
By: By:
Name: Sujay Karve Name:
Title: CEO Title:
Exhibit A
Overage Fees
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Service |
Included capacity |
Overage Fee |
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Storage of user contact, demographic information, documents, photos. |
1 GB for every 1000 paid Users in a year |
$1.00/GB/Month for additional storage capacity |
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Automated Emails (Transactional and mass messaging) |
20 emails per paid User per year |
$1.00 per 5000 additional emails sent, rounded to the next higher multiple of 5000. |
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Push Notifications |
100 push notifications per paid User per year |
$2.00 per million push notifications rounded to the next higher multiple of a million. |
Overage Fees are subject to change at the beginning of every quarter based upon changes to market conditions. Parties agree that if the fee increase in the current quarter relative to the previous quarter’s fee is greater than the most recent US Dollar Inflation as reported by the US Bureau of Labor Statistics, then such a fee increase is subject to approval by Customer.
Simply Compete, Inc.: [Customer]:
By: By:
Name: Sujay Karve Name:
Title: CEO Title: