Zaidsoft Software-as-a-Service Master Agreement |
| BY CLICKING THE "I ACCEPT" BOX, OR USING THE ZAIDSOFT SERVICE THAT YOU HAVE SELECTED IN THE ORDERING PROCESS, AS DEFINED BELOW, YOU ARE AGREEING ON BEHALF OF THE ENTITY USING THE SERVICE ("COMPANY") THAT COMPANY WILL BE BOUND BY AND IS BECOMING A PARTY TO THIS ON-DEMAND HOSTING AGREEMENT ("AGREEMENT") AND THAT YOU HAVE THE AUTHORITY TO BIND COMPANY. IF COMPANY DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT SELECT THE "I ACCEPT" BOX AND DO NOT USE THE SERVICES. COMPANY HAS NOT BECOME A LICENSEE OF, AND IS NOT AUTHORIZED TO USE THE SERVICES UNLESS AND UNTIL IT HAS AGREED TO BE BOUND BY THESE TERMS. THE "EFFECTIVE DATE" FOR THIS AGREEMENT SHALL BE THE DAY YOU CHECK THE "I ACCEPT" BOX OR THE DATE OF SIGNING OF AN AGREEMENT TO THIS EFFECT WHICHEVER IS EARLIER. 1. Definitions: 1.1 "Company’s Data" shall mean any data, information or material submitted by Company during its usage of the Service. 1.2 "Initial Term" shall mean the initial period of time in which Company pays to receive the Service and which shall also determine Company’s billing frequency. 1.3 "License Administrator" shall mean the person that Company designates to purchase usage of the Services and create accounts for additional Users or otherwise administer the Company’s use of the Service. 1.4 “Portal” means a software module that is designed to communicate with the Services. 1.5 “Portal User” means those individuals that are employees of Company’s customers who may use the Portal per the terms of this Agreement. A Company employee cannot be a Portal User. 1.6 "Service(s)" shall mean the provision of access via the Internet to a specific edition of Sugar Professional software that you have selected in the ordering process, applicable Zaidsoft Technology and other associated services identified during the ordering process which are developed, operated, and maintained by Zaidsoft, while at all times the Zaidsoft software remains on Zaidsoft’s server. 1.7 "Zaidsoft Technology" shall mean all of the Zaidsoft's proprietary technology (including, but not limited to, hardware, software, documents, processes, algorithms, user interfaces, and know-how) and services made available by providing the Service to Company. 1.8 “Zaidsoft Intellectual Property" shall mean any of Zaidsoft’s patents and applications therefore, copyrights, trademarks, service marks, trade names, domain name rights, and other trade secret rights, and all other intellectual property rights. 1.9 “Term” means the Initial Term and each renewal term, collectively. 1.10 "User(s)" shall mean Company’s employees, consultants, contractors or agents authorized by the License Administrator to use the Service. 2. License Grant: (a) Subject to the terms and conditions of this Agreement, Zaidsoft hereby grants Company and its Users a non-exclusive, revocable, non-transferable, non-sublicensable right to use the Service and Zaidsoft Technology for the Term of this Agreement, solely for Company’s own internal business purposes. All rights not expressly granted to Company are reserved by Zaidsoft and its licensors. Company shall upgrade to the current version of the Services within thirty (30) days of Zaidsoft’s release of such new version. All such upgrades will be free of charge to Company except if Company using any module other than the module known as “Zaidsoft Studio” to customize the Services for Company’s environment, in which case, Zaidsoft shall have the right to charge the then-current standard fee for such upgrade. The Services will be deemed accepted by Company on the date Company checks the “I ACCEPT” box. (b) Subject to the terms and conditions of this Agreement, Zaidsoft grants Company, for the Term: a non-exclusive, royalty-free, fully-paid up, non-transferable license to sublicense the use of the Portal to an unlimited number of Portal Users and a royalty-free, fully-paid up, non-exclusive, non-transferable, nonsublicensable license for one (1) Company employee to use and administer the Portal solely as necessary to provide the Portal to the Portal Users as set forth in this Section 2. For the avoidance of doubt, no other Company employee shall use or access the Portal. Upon the Effective Date, Zaidsoft shall provide the Portal to Company via download and Company will then host the Portal. By entering into this Agreement, Company is acting as agent for Company’s Portal Users and binding them to the terms hereof and Company shall undertake to bind them to the terms hereof applicable to the Portal and at least as protective of Zaidsoft as, the terms and conditions set forth herein, including, without limitation, disclaimers of all warranties and disclaimers of all consequential damages in favor of Zaidsoft by performing any act or executing any document (“Portal User Contract”) that may be required in the jurisdiction in which such Portal Users are using the Portal and Company agrees to indemnify Zaidsoft for any failure to bind such Portal Users to the terms hereof. Company shall be responsible for any act or omission of Company’s Portal Users and of Company’s Portal Users' compliance with all of the terms of this Agreement and the Portal User Contract. Any action or breach by any of Company’s Portal Users shall be deemed an action or breach by Company and vice versa and Company shall correct any breach made by any of its Portal Users within thirty (30) days of the date of Zaidsoft’s notice thereof and if Company does not correct such breach, then Company will indemnify and hold Zaidsoft harmless from any and all breaches of this Agreement by its Portal Users that are not corrected within such time period. Company waives all of those defenses that Company may have as to why Company should not be liable for Company’s Portal Users' acts, omissions and noncompliance with this Agreement. 3. Restrictions: Company shall not, directly or indirectly, (i) sublicense, resell, rent, lease, distribute, or otherwise transfer rights or usage to the Service or Zaidsoft Technology or the Portal for any purpose including timesharing or service bureau purposes; (ii) create Internet links to the Service, (iii) "frame", “fork” or "mirror" any Zaidsoft Technology on any other device; (iv) reverse engineer the Zaidsoft Technology or the Portal or access the Service or copy any ideas, features, functions or graphics of the Service for any purpose other than what is expressly authorized in this Agreement, (v) conduct automated functionality tests or load tests on the Services or the Zaidsoft Technology, (vi) attempt to gain access to data that is not Company ’s Data, or use a disproportionate amount of the Services that interrupts or degrades the Services, or (vii) run on any of Company’s or Portal User’s hardware, or have deployed for use, any copy or version of the Zaidsoft open source version of the Software in conjunction with the Portal. If Company does any of the foregoing, Zaidsoft shall have the right to terminate or suspend Company’s account and access to the Services and/or the Portal without any refund or credit until Company corrects such violation to Zaidsoft’s reasonable satisfaction. Company may not permit any of its affiliates or subsidiaries or any individual that is not a User to use the Service under Company’s subscription. The Zaidsoft Technology and the Service includes modules that reports the number of authorized Users and permits Zaidsoft the ability to monitor certain usage of the Zaidsoft Technology and/or the Service ("Critical Control Software") which is fundamental to the business of Zaidsoft. For the avoidance of doubt, neither the Company nor the Users may modify any portion of the Critical Control Software. The violation of this prohibition shall be deemed a material breach of this Agreement and Zaidsoft may immediately terminate this Agreement. Except as expressly provided herein, no licenses of any kind are granted hereunder, whether by implication, estoppel, or otherwise. 4. Company’s Responsibilities and Data: 4.1 User Accounts: Company shall designate a License Administrator and notify Zaidsoft of the identity and contact information for said License Administrator. The License Administrator may add Users to Company’s subscription to the Service by placing an order with Zaidsoft. Company is responsible for all activity occurring under Company’s User’s accounts. Company shall notify Zaidsoft immediately of any unauthorized use of any password, account, copying or distribution of the Zaidsoft Technology. User accounts cannot be shared or used by more than one individual User but may be reassigned to new Users replacing former Users. 4.2 Company’s Data: Zaidsoft does not own any of the Company’s data. Company is solely responsible for the accuracy, integrity, and legality of Company’s Data. Notwithstanding anything to the contrary in this Agreement, Zaidsoft shall not be responsible or liable for the deletion, corruption, correction, destruction, damage, loss or failure to any of Company’s Data. Company shall not knowingly send or store spam, unlawful, infringing, obscene, or libelous material, or viruses, worms, Trojan horses and other harmful code, or data which violates the rights of any individual or entity established in any jurisdiction including, without limitation, medical information, credit card information or social security numbers, driver’s license or personal identification numbers or account numbers on or to the Service. Company represents and warrants that it is in compliance with and will comply with all applicable privacy and data protection laws and regulations with respect to any of Company’s Data uploaded or submitted to the Service and its performance of its obligations under this Agreement. Company will indemnify, defend and hold Zaidsoft harmless from any claims, losses and causes of action arising out of or related to Company’s breach of this Section 4.2. 4.3 Company’s Data Storage. The maximum disk storage space provided to Company at no additional charge is ___ per User license. If the amount of disk storage required exceeds these limits, Company will be charged Zaidsoft’s then-current storage fees. 5. Intellectual Property Ownership: Zaidsoft and its licensors own all right, title and interest to the Zaidsoft Intellectual Property, the Zaidsoft Technology, the Service, the Portal and any modifications thereto, and any modifications, ideas, or recommendations provided by Company. This Agreement does not convey or transfer any ownership rights in the Service, Zaidsoft Technology, the Portal or Zaidsoft Intellectual Property. The Zaidsoft name, logo, and trade names are trademarks of Zaidsoft and no right is granted to use them except as expressly granted herein. 6. Payment Terms: 6.1 Fees: Company shall pay all fees associated with providing the Service. The initial charges shall equal the total number of Users at the time of signing up multiplied by the per User fee in effect at the time of ordering the Service or any such charges that have been specified in the written and signed agreement between Zaidsoft and the company. Company shall pay for all User fees ordered for an entire Term, whether or not all Users use the Service. Company shall make future fee payments for renewal annually or quarterly, consistent with the Initial Term. Company must provide Zaidsoft with a valid credit card or alternative payment form prior to receiving the Service. Company shall make fee payments for added Users during any Term of this Agreement. All fees paid to Zaidsoft are non-refundable. Additional User fees shall be assessed at the then current rate and, if added in the middle of a billing cycle, charged for a full cycle. Zaidsoft reserves the right to modify its fees upon thirty (30) day prior written notice which may be provided by e-mail. Zaidsoft will automatically bill Company’s credit card or alternative payment form in the billing frequency established by the length of Company’s Initial Term. The renewal charge will be equal to the number of Users multiplied by the then current per User fee. Company agrees to provide Zaidsoft with complete and accurate billing and contact information. If invoiced by Zaidsoft, payments for such invoices are due net 30 days. Zaidsoft may terminate the Service if the billing or contact information is false or fraudulent. Company will also pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity on the transactions contemplated by this Agreement, excluding taxes based upon Zaidsoft’s net income. 6.2 Non-Payment: Zaidsoft may terminate this Agreement and Company’s access to the Service for Company’s non-payment of fees that is delinquent by thirty (30) days or more. If Zaidsoft terminates this Agreement for such non-payment of fees, Zaidsoft has no obligation to retain any of Company’s Data which may be irretrievably deleted if Company has not requested such Company’s Data from Zaidsoft within thirty (30) days of the effective date of termination pursuant to Section 7.1 below. Company agrees that Zaidsoft may charge unpaid fees to Company’s credit card or otherwise bill Company for unpaid fees. 6.3 Records Retention. Company shall maintain accurate records necessary to verify the number of Users. Upon Zaidsoft’s written request, Company shall provide Zaidsoft with such records within ten (10) days. If Company has more Users than Company has paid for, Company shall immediately pay Zaidsoft the applicable fees for such additional Users, in addition to any costs incurred by Zaidsoft associated with reviewing such records. 6.4 Backup of Data. Company shall have the right to receive two (2) recoveries of Company’s Data from backup per calendar year free of charge. Additional recoveries are available for an additional charge at __________ per hour. The data format of the data provided to the customer is exclusively defined by Zaidsoft at its sole discretion. 7. Term and Termination: 7.1 Term: This Agreement shall be effective as of the Effective Date. The Initial Term will be for one (1) year and shall commence on the date Company pays for the Service or starts using the services whichever is earlier. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one (1) year, if the Initial Term is greater than one (1) year) at Zaidsoft's then current fees. In case of Users who are authorized and added after the beginning of the Initial Term, the Term of their usage of the Service shall be coterminous with the preexisting Term. Upon termination or expiration of this Agreement Zaidsoft will make available to Company Company’s Data within thirty (30) days of the effective date of such termination or expiration, upon Company’s request. The data format of the data provided to the customer is exclusively defined by Zaidsoft at its sole discretion. 7.2 Termination: Company may terminate this Agreement or reduce its number of Users at the end of each Term by notifying Zaidsoft in writing at least thiry (30) business days prior to the end of the then-current Term. Zaidsoft may terminate this Agreement without cause or reduce the number of Users at any time by notifying Company in writing at least thirty (30) days prior to such termination. Zaidsoft may terminate Company’s use of the Service if, in Zaidsoft’s sole discretion, Company breaches or otherwise fails to comply with this Agreement and Company has not cured such breach within thirty (30) days of Zaidsoft’s notice specifying the alleged breach. Company’s obligation to make a payment of any outstanding, unpaid fees and to keep Confidential Information confidential and the terms of Section 3 shall survive termination or expiration of this Agreement. 8. Confidentiality. Company and Zaidsoft agree to maintain the confidentiality of any proprietary information received by the other party during, or prior to entering into, this Agreement that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure including, without limitation, non-public technical and business information (“Confidential Information”) for a period of two (2) years after the termination of this Agreement. This section shall not apply to any publicly available or independently developed information or the open source version of the Zaidsoft software licensed under the Zaidsoft Public License. The receiving party of any Confidential Information of the other party agrees not to use said Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party’s Confidential Information to the same degree that it takes to protect its own confidential information and in no event less than reasonable care. 9. Representations & Warranties: Zaidsoft represents and warrants that it will provide the Service in a manner consistent with general industry standards and that the Service will perform substantially in accordance with any documentation provided by Zaidsoft. If any portion of the Zaidsoft Technology (except for third party software) is held to infringe any third party intellectual property rights, then Zaidsoft will, at its expense and option: (i) obtain the right for Company to continue to use the Service; (ii) modify the software so that it is non-infringing; or (iii) replace the infringing component with a non-infringing component. 10. Disclaimer of Warranties: EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE AND THE ZAIDSOFT TECHNOLOGY AND THE PORTAL ARE PROVIDED TO COMPANY STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ZAIDSOFT AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE OR THE PORTAL WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE, (B) THE SERVICE OR ZAIDSOFT TECHNOLOGY OR THE PORTAL WILL MEET COMPANY’S REQUIREMENTS OR EXPECTATIONS, (C) ERRORS OR DEFECTS WILL BE CORRECTED, OR (D) THE SERVICE OR ZAIDSOFT TECHNOLOGY OR THE PORTAL ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ZAIDSOFT'S SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND ZAIDSOFT IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. Zaidsoft may limit the number of Company’s Portal Users at any time by providing Company with a written notice if Zaidsoft believes, in its sole discretion, that Company’s Portal Users are burdening or overwhelming the system. 11. Force Majeure, Limitation of Liability: 11.1 Force Majeure. Except for the payment of fees, neither party shall be in breach of this Agreement due to failure of performance that arises out of causes beyond its reasonable control. 11.2 Disclaimer of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ZAIDSOFT BE LIABLE TO COMPANY OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE), INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT OR ZAIDSOFT’S PERFORMANCE INCLUDING WITHOUT LIMITATION (A) THE ZAIDSOFT TECHNOLOGY OR THE SERVICES OR THE PORTAL, (B) ANY INTERRUPTION OF USE OF THE ZAIDSOFT TECHNOLOGY OR THE SERVICE OR THE PORTAL OR (C) FOR LOSS, INACCURACY OR CORRUPTION OF COMPANY DATA, EVEN IF ZAIDSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 11.3 Limitation on All Damages. IN NO EVENT SHALL ZAIDSOFT'S LIABILITY HEREUNDER FOR CLAIMS IN THE AGGREGATE, EXCEED THE AMOUNT THAT COMPANY PAID TO ZAIDSOFT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY. 12 General: Except as expressly provided herein, Company may not assign its rights or delegate its obligations under this Agreement, without the prior written consent of Zaidsoft. This Agreement will be governed by and construed in accordance with the laws of the
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