SOFTWARE AS A SERVICE (SaaS) TRIAL LICENSE
This Software as a Service license for trial (this “Trial License”) is entered into by you on the date you accept it or upon your first use of the Hosted Services linking to this Trial License. (the “Effective Date”) by and between Indegene, Inc., a corporation incorporated under the laws of Delaware having its address at 150 College Rd West Suite 104, Princeton New Jersey 08540 USA and affiliates (“SaaS Provider”) and you (“SaaS Subscriber”).
WHEREAS, SaaS Subscriber requires third-party hosted “software as a service” (the “Hosted Services,” as further described herein) with respect to a limited trial;
WHEREAS, SaaS Provider has agreed to provide the Hosted Services for limited trial to SaaS Subscriber, all on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and representations set forth in this Trial License, the parties hereby agree as follows:
Except to the extent expressly provided otherwise, in this Trial License:
"Account" means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;
"Trial License" means this Software as a Service Trial License Agreement including any Schedules, and any amendments to this Trial License from time to time;
"Business Day" means any weekday other than a bank or public holiday in for each applicable market;
"Business Hours" means Monday to Friday 7:00 am to 8:00 pm local time for each applicable market;
"Documentation" means the documentation for the Hosted Services produced by SaaS Provider and delivered or made available by SaaS Provider to SaaS Subscriber;
"Effective Date" means the date of execution of this Trial License;
"Force Majeure Event" means an event or a series of related events that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, earthquakes, fires, floods, riots, terrorist attacks and wars);
"Hosted Services" means Indegene Omnipresence, including all its constituent software applications such as Customer Relationship Management tools, omnichannel engagement tools, digital content tools, and data and analytics tools, which will be made available by the SaaS Provider to SaaS Subscriber as a service via the internet in accordance with this Trial License;
"Hosted Services Defect" means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of SaaS Subscriber or any person authorized or enabled by SaaS Subscriber to use the Software Platform or
(b) any use of the Software Platform or Hosted Services contrary to the Documentation, whether by SaaS Subscriber or by any person not authorized by SaaS Provider;
(c) a failure of SaaS Subscriber to perform or observe any of its obligations in this Trial License; or
(d) an incompatibility between the Software Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
"Hosted Services Specification" means the specification for the Software Platform and Hosted Services set out in this Trial License and in the Documentation;
"Intellectual Property Rights" means all intellectual property rights anywhere in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Mobile App" means the mobile application known as Indegene Omnipresence that is made available by SaaS Provider through the Google Play Store and the Apple App Store;
"Permitted Purpose" means trial of the Software Platform;
"Software Platform" means the Indegene Omnipresence software managed by SaaS Provider and used by SaaS Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed. For full clarity, Indegene Omnipresence presently uses the Microsoft Dynamics 365 enterprise application platform as an underlying technology platform;
"SaaS Subscriber Confidential Information" means:
(a) any information disclosed by SaaS Subscriber to SaaS Provider in writing at any time before the termination of this Trial License, that at the time of disclosure:
(i) was marked or described as "confidential"; or
(ii) should have been reasonably understood by SaaS Provider to be confidential; and
(b) SaaS Subscriber Data;
“SaaS Subscriber Data” means a) any data uploaded, entered or supplied to or received, processed, generated or created by SaaS Provider or SaaS Provider’s Software Platform in connection with this Trial License and b) any software and its related documentation, from whatever source, that may be supplied by SaaS Subscriber to SaaS Provider in connection with this Trial License.
"Schedule" means any schedule attached to this Trial License;
"Support Services" means technology support in relation to the use of, and the identification and resolution of errors in, the Hosted Services;
"Supported Web Browser" means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that SaaS Provider agrees in writing shall be supported for use with the Software Platform and Hosted Services;
"Term" means the term of this Trial License, commencing in accordance with Section 3.1 and ending in accordance with Section 3.2;
"Update" means a hotfix, patch or minor version update to any Software Platform software; and
"Upgrade" means a major version upgrade of any Software Platform by SaaS Provider.
2. Hosted Services
2.1. SaaS Provider shall create an Account for SaaS Subscriber and shall provide to SaaS Subscriber login details for that Account on or promptly following the Effective Date.
2.2. SaaS Provider hereby grants to SaaS Subscriber during the Term a worldwide, non-exclusive, non-sub-licensable, non-transferable, non-modifiable, non-resellable license to use the Hosted Services by means of a Supported Web Browser or Mobile App for the Permitted Purpose of SaaS Subscriber in accordance with this Agreement and the Documentation.
2.3. SaaS Provider shall provide to SaaS Subscriber all necessary underlying Microsoft Dynamics 365 licenses under Microsoft’s Online Services Terms as provided in Schedule 2 (Microsoft Online Services Terms). For full clarity, Microsoft will be responsible for all product and service related warranties for Microsoft Dynamics 365 enterprise application platform as defined by the Microsoft Online Service Terms attached herewith in Schedule 2;
2.4. The license granted by SaaS Provider to SaaS Subscriber under Section 2.2 is subject to the limitations set forth in this Trial License, as well as the following limitations:
(a) the Hosted Services including the underlying Microsoft Dynamics 365 licenses may only be used by the officers, employees, agents and subcontractors of SaaS Subscriber; and
(b) the Hosted Services including the underlying Microsoft Dynamics 365 licenses must not be used at any point in time by more than the trial user.
2.5. Except to the extent expressly permitted in this Trial License or required by law on a non-exclusive basis, the license granted by SaaS Provider to SaaS Subscriber under Section 2.2 is subject to the following prohibitions:
(a) SaaS Subscriber may not sub-license its right to access and use the Hosted Services including the underlying Microsoft Dynamics 365 licenses;
(b) SaaS Subscriber may not permit any unauthorized person to access or use the Hosted Services including the underlying Microsoft Dynamics 365 licenses;
(c) SaaS Subscriber may not republish or redistribute any content or material from the Hosted Services including the underlying Microsoft Dynamics 365 licenses;
(d) SaaS Subscriber may not make any alteration to the Software Platform including the underlying Microsoft Dynamics 365 platform, except as permitted by the Documentation.
(e) SaaS Subscriber accepts the Online Services Terms for the Microsoft Dynamics 365 licenses, as shown in Schedule 2.
2.6. SaaS Subscriber shall use reasonable efforts, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorized person may gain access to the Hosted Services using an administrator Account.
2.7. SaaS Subscriber must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of SaaS Subscriber, or by means of an administrator Account, comply with Schedule 1 (Acceptable Use Policy).
2.8. SaaS Subscriber must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Software Platform or impairment of the availability or accessibility of the Hosted Services.
2.9. SaaS Subscriber must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful;
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity; or
(c) in breach of this Trial License or the Documentation.
2.10. For the avoidance of doubt, SaaS Subscriber has no right to access or duplicate the software code (including object code, intermediate code and source code) of the Software Platform, either during or after the Term.
2.11. SaaS Provider may suspend the provision of the Hosted Services if any amount due to be paid by SaaS Subscriber to SaaS Provider under this Trial License is overdue, and SaaS Provider has given to SaaS Subscriber at least 30 days' written notice of its intention to suspend the Hosted Services on this basis. SaaS Provider also may temporarily suspend SaaS Subscriber’s access to all or any portion of the Hosted Services if : SaaS Provider reasonably determines there is a threat or attach on any of the SaaS Provider’s Intellectual Property, if SaaS Subscriber’s use disrupts or poses a security risk to SaaS Provider’s Intellectual Property or to any other customer or vendor of SaaS Provider, if SaaS Subscriber is using the SaaS Provider’s Intellectual Property for any fraudulent or illegal activities, if SaaS Provider has grounds to terminate this Trial License, if SaaS Provider’s provision of the Hosted Services to SaaS Subscriber is prohibited by applicable law, or if any vendor of SaaS Provider has suspended or terminated SaaS Provider’s access to or use of any third party services or products required to enable SaaS Subscriber.to access the Hosted Services. In the event of any such suspension by SaaS Provider, SaaS Provider will use commercially reasonable efforts to provide written notice of suspension to SaaS Subscriber and to provide updates regarding resumption of access to the Hosted Services as appropriate. SaaS Provider will have no liability for any damages, liabilities or losses that SaaS Subscriber may incur as a result of any such suspension. Any suspension relating to the SaaS Subscriber will include its authorized users
2.13. Where an authorized user is required to “click through” or otherwise accept or made subject to any online terms and conditions in accessing or using the Hosted Services, such terms and conditions are independently binding and shall not impair the Hosted Services, this Trial License, or any applicable Schedule.
3.1. This Trial License shall be legally effective on the Effective Date.
3.2 This Trial License shall continue in force until 30 days, upon which this Trial License shall terminate automatically, subject to termination in accordance with Section 4.
4.1. Either party may terminate this Trial License immediately by giving written notice of termination to the other party if the other party commits a material breach of this Trial License after giving notice of the breach in writing to the other party.
4.2. Either party may terminate this Trial License immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under this Trial License)]; or
(d) if (i) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy, (ii) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within sixty (60) days, or (iii) the other party is adjudged bankrupt.
5. Effects of termination
5.1. Upon the termination of this Trial License, all of the provisions of this Trial License shall cease to have effect, save that the following provisions of this Trial License shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Sections 1, 5.3, 6, 7, and 10.
5.2. Except to the extent that this Trial License expressly provides otherwise, the termination of this Trial License shall not affect the accrued rights of either party.
5.3. SaaS Provider will not provide to SaaS Subscriber any assistance to effect the transition of the Hosted Services after the Term or upon termination of this Trial License. This Section shall survive the termination of this Trial License.
6. Intellectual Property
6.1. SaaS Provider retains sole and exclusive ownership of all of its intellectual property as of the Effective Date, any derivative works of such intellectual property created after the Effective Date and any intellectual property developed or acquired by SaaS Provider after the Effective Date in compliance with any available legal requirements; provided that such derivative work (a) does not directly incorporate SaaS Subscriber Confidential Information; and (b) is not created specifically for SaaS Subscriber by SaaS Provider as a result of a commercial custom software development Trial License.
6.2. Notwithstanding any other provision of this Trial License, or any other Licenses between the parties, (a) SaaS Subscriber will not have any rights to the Software Platform related to the Hosted Services or Documentation, except for the limited license under Section 2.2 of this Trial License; SaaS Provider reserves to itself all rights to the Software Platform and Documentation; (b) SaaS Provider retains all right, title and interest in and to the Software Platform and Documentation, including without limitation all intellectual property rights therein and inventions, corrections, bug fixes, enhancements, modifications, configurations, Updates, Upgrades, or new versions thereof (collectively, “SaaS Provider Intellectual Property”); (c) SaaS Subscriber acknowledges that the limited license granted herein does not provide such SaaS Subscriber with title to or ownership of the Software Platform or Documentation or any SaaS Provider Intellectual Property; (d) if SaaS Subscriber provides SaaS Provider with reports of defects in the Software Platform or Documentation, or any changes or modifications proposed or suggested by SaaS Subscriber (collectively “SaaS Subscriber Feedback”), SaaS Provider shall have the right to use such SaaS Subscriber Feedback including, without limitation, the incorporation of such SaaS Subscriber Feedback into SaaS Provider’s Software Platform, without any obligation to SaaS Subscriber, so long as such SaaS Subscriber Feedback does not reveal the identity, whether directly or indirectly, of any individual or specific data entered into the Software Platform; or (ii) reveal the identity, whether directly or indirectly, of SaaS Subscriber or its users to any third party. In no event shall the SaaS Subscriber Feedback include any personally identifiable information or personal data as defined under applicable law and/or SaaS Subscriber Confidential Information; and (e) in the case of any custom reports created by SaaS Provider for SaaS Subscriber, if any, SaaS Subscriber shall own the SaaS Subscriber Confidential Information in each report, but SaaS Provider shall retain ownership of any reporting templates that it creates, even if created on a custom basis for SaaS Subscriber.
6.3 Except for the SaaS Provider Intellectual Property and as provided otherwise in this Trial License, all data, results, ideas, discoveries, inventions, reports and works of authorship, whether or not patentable or subject to copy right, which may be made, written, conceived or reduced to practice by SaaS Subscriber arising directly from the use of Software Platform and the SaaS Subscriber Confidential Information will be owned solely by SaaS Subscriber, subject to SaaS Provider’s Intellectual Property.
6.4. Except for SaaS Provider Intellectual Property and as provided otherwise in this Trial License, all copyrightable works arising directly from the use of Software Platform and the SaaS Subscriber Confidential Information hall be considered “works made for hire” and shall be owned solely by SaaS Subscriber.
6.5. SaaS Provider represents and warrants that SaaS Provider has the right to use and sublicense any materials that are owned by parties other than SaaS Provider and that are incorporated into the Hosted Services under this Trial License (such materials, collectively, “Third Party Materials”); and hereby sublicenses to SaaS Subscriber the right to use any such Third Party Materials in connection with the receipt, use and full enjoyment of the benefits of the Hosted Services and represents and warrants that any such use of any the Third Party Materials does not and will not infringe the intellectual property rights of any third party.
6.6. Nothing in the Trial License is intended to grant or create any right or license to SaaS Provider with respect to any patent rights, copyrights, trademarks or other Intellectual Property owned by SaaS Subscriber, except as necessary to provide the Hosted Services.
7. SaaS Subscriber Data
7.1. SaaS Provider shall not allow any of its employees, officers, agents, or third party subcontractors, access to any SaaS Subscriber Data that is not required for the performance of the Hosted Services. Except as provided in Section 7.4 , or as reasonable to perform its obligations under this Trial License, or to implement improvements to the Software Platform, or to conduct analyses of accumulated data, or to develop new modules that make usage of Hosted Services easier and more suitable for the end users based on their preferences and historical response information, SaaS Provider shall have no implied right to access any data files, directories of files, SaaS Subscriber Data, or other SaaS Subscriber Confidential Information and shall access and/or use such files, SaaS Subscriber Data, and SaaS Subscriber Confidential Information only as reasonable in performing the Hosted Services that are the subject of this Trial License. As a part of the Software Platform improvement process or of developing new modules, the SaaS Provider will be allowed to share and publish analysis at the accumulated level or the population level data that does not have any personal identified data.
7.2. SaaS Subscriber shall own all rights, title and interest in and to all of SaaS Subscriber Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of SaaS Subscriber Data. SaaS Subscriber warrants to SaaS Provider that SaaS Subscriber Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation in any jurisdiction and under any applicable law.
7.3. Rights in SaaS Subscriber Data. As between the parties, SaaS Subscriber retains all right, title, and interest (including any Intellectual Property) in and to the SaaS Subscriber Data, and all content contained within such data (excluding any SaaS Provider Intellectual Property). SaaS Subscriber hereby grants SaaS Provider a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the SaaS Subscriber Data solely to the extent necessary to provide the SaaS Provider Hosted Services and related services to SaaS Subscriber and as set out in Section 7.4 (Aggregate/Anonymous Data).
7.4. Aggregate/Anonymous Data. SaaS Subscriber agrees that SaaS Provider will have the right to generate Aggregate/Anonymous Data and that Aggregate/Anonymous Data is SaaS Provider Intellectual Property, which SaaS Provider may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve SaaS Provider’s products and services and to create and distribute reports and other materials). For clarity, SaaS Provider will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form. SaaS Subscriber is not responsible for SaaS Provider’s use of Aggregate/Anonymous Data.
7.5. Even upon request by SaaS Subscriber at any time during the term of this Trial License, and upon termination of this Trial License, SaaS Provider shall not be required to (a) return to SaaS Subscriber all or any part of the SaaS Subscriber Data in SaaS Provider’s possession. Upon request by SaaS Subscriber, SaaS Provider shall erase or destroy all or any part of the SaaS Subscriber Data in SaaS Provider’s possession (except as permitted in Section 7.4), in each case to the extent so requested by SaaS Subscriber and without erasing and destroying Data that has been retained for purposes of conducting analytical computation not specific to the SaaS Subscriber such as but not limited to machine learning algorithms, master data profile enhancement and the like. The SaaS Provider shall be entitled to delete SaaS Subscriber Data within 10 days after the Term of tis Trial License. SaaS Provider agrees that it will store SaaS Subscriber Data for the benefit of SaaS Subscriber and will segregate SaaS Subscriber Data from SaaS Provider’s other clients’ data. SaaS Provider shall, at all times, store, organize and index SaaS Subscriber Data in a manner that reasonably ensures SaaS Provider is able to provide SaaS Subscriber immediate access to all of SaaS Subscriber Data as required by this Trial License. SaaS Provider shall identify SaaS Subscriber Data as the property of SaaS Subscriber.
7.6. SaaS Subscriber shall have access to, and the right to review and retain the entirety of, all computer or other files containing SaaS Subscriber Data in SaaS Provider’s possession. At no time shall any of such files or other materials or information be stored or held in a form or manner not reasonably accessible to SaaS Subscriber. SaaS Provider shall provide to SaaS Subscriber all passwords, codes, comments, keys, documentation, and the locations of any such files and other materials promptly upon the request of SaaS Subscriber, including equipment and Software Platform keys and such information as to format, encryption (if any), and any other specification or information necessary for SaaS Subscriber to retrieve, read, revise, and/or maintain such files and information. Upon SaaS Subscriber’ request, SaaS Provider shall confirm that, to the best of its knowledge, all files and other information provided to SaaS Subscriber or its designee that are in SaaS Provider’s possession are complete and that no material element of such files has been deleted, withheld, disguised, or encoded in a manner inconsistent with the purpose and intent of providing full and complete access to SaaS Subscriber or its designee as contemplated by this Trial License.
7.7. If SaaS Provider discovers or is notified of a breach or potential breach of security relating to the SaaS Subscriber Data, (a) SaaS Provider shall immediately notify SaaS Subscriber of such breach or potential breach, and (b) if the applicable SaaS Subscriber Data was in the possession of SaaS Provider or SaaS Provider agents at the time of such breach or potential breach, SaaS Provider shall (1) investigate and cooperate with SaaS Subscriber to remediate the effects of the breach or potential breach, and (2) cooperate with SaaS Subscriber to avoid such breach or potential breach in the future. SaaS Subscriber acknowledges that it will back up or maintain redundant data archives, and acknowledges that SaaS Provider has no liability for any losses, damage, corruption, or recovery of SaaS Subscriber Data.
7.8. SaaS Provider will house its infrastructure for the Hosted Services in a secure facility. SaaS Provider shall use commercially reasonable efforts to backup SaaS Subscriber Data, SaaS Subscriber Confidential Information and all other data and materials relating to the Hosted Services including, without limitation, orders, documents, communications, operational data, databases, websites and software in a manner sufficient to meet SaaS Provider’s obligations under this Trial License. In the event of any losses, damage or corruption of SaaS Subscriber Data, SaaS Provider will use commercially reasonable efforts to restore SaaS Subscriber Data from SaaS Provider’s then most current backup of such SaaS Subscriber Data, as SaaS Subscriber’s sole remedy against SaaS Provider.
8. Representations and Warranties
8.1. Each of SaaS Subscriber and SaaS Provider represent and warrant that:
(i) it is a business duly organized, validly existing, and in good standing under the laws of its state of formation;
(ii) it has all requisite legal power, financial capacity, and authority to execute, deliver, and perform its obligations under this Trial License;
(iii) the execution, delivery, and performance of this Trial License has been duly authorized by it and this Trial License constitutes the legal, valid, and binding Trial License of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles;
(iv) it shall comply with all applicable federal, state, local, or other laws and regulations applicable to the performance by it of its obligations under this Trial License and shall obtain all applicable permits and licenses required of it in connection with its obligations under this Trial License; and,
(v) there is no outstanding litigation, arbitrated matter or other dispute ("Disputes") to which it is a party which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on its ability to fulfill its obligations under this Trial
8.2. SaaS Provider represents and warrants that:
(i) it is in the business of providing the Hosted Services;
(ii) the Hosted Services are fit for the ordinary purposes for which they will be used;
(iii) it is the lawful licensee or owner of the Hosted Services (excluding any SaaS Subscriber Data therein and excluding the underlying Microsoft Dynamics 365 platform or Supported Web Browsers) and has all the necessary rights in the Hosted Services to grant the use of the Hosted Services to SaaS Subscriber;
(iv) the Hosted Services and any other work performed by SaaS Provider hereunder shall not infringe upon any United States or foreign copyright, patent, trade secret, or other proprietary right, or misappropriate any trade secret, of any third-party, and that it has neither assigned nor otherwise entered into an Trial License by which it purports to assign or transfer any right, title, or interest to any technology or intellectual property right that would conflict with its obligations under this Trial License;
(v) it has the expertise to perform the Hosted Services in a competent, workmanlike, and professional manner and in accordance with the industry standards;
(vi) it will use its best efforts to ensure that no computer viruses, malware, or similar items (collectively, a “Virus”) are introduced into SaaS Subscriber’s computing and network environment by the Hosted Services;
(vii) the Hosted Services are free of any mechanism known to SaaS Provider which may disable the Hosted Services and SaaS Provider warrants that no loss of SaaS Subscriber Data will result from such items if present in the Hosted Services;
9. Indemnification; Limitation of Liability
9.1. SaaS Provider agrees to indemnify, defend, and hold harmless an Indemnitee from and against any and all Claims, including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to the Hosted Services infringing or misappropriating any United States or foreign patent, copyright, trade secret, trademark, or other proprietary right. In the event that SaaS Provider is enjoined from providing the Hosted Services and such injunction is not dissolved within thirty (30) calendar days, or in the event that SaaS Subscriber is adjudged, in any final order of a court of competent jurisdiction from which no appeal is taken, to have infringed upon or misappropriated any patent, copyright, trade secret, trademark, or other proprietary right in the access or use of the Hosted Services, then SaaS Provider shall, at its expense use its commercially reasonable efforts to replace or modify such Hosted Services so that they do not infringe upon or misappropriate such proprietary right and is free to be used by SaaS Subscriber; or, in the event that SaaS Provider is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, SaaS Provider shall reimburse to SaaS Subscriber any prepaid fees for the remainder of the Term of the Trial License. This Section 10.1 sets forth SaaS Subscriber’s sole remedies and SaaS Provider’s sole liability for any Claims.
9.2 SaaS Subscriber agrees to indemnify, defend, and hold harmless an Indemnitee from ad against any and all Claims, including reasonable attorneys’ fees, costs, and expense incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee by reason of any Claim arising out of or relating to SaaS Subscriber Data, or relating to the use of the SaaS Subscriber Data in accordance with this Trial License infringes or misappropriates a third party’s Intellectual Property Rights, or based on the use of any such SaaS Subscriber Data by SaaS Subscriber, its authorized users or any other party accessing such SaaS Subscriber Data from SaaS Subscriber, use of the Hosted Services in combination with any data, software, hardware, equipment or technology not provided or authorized by SaaS Provider in writing or modifications to the Hosted Services not made by SaaS Provider.
9.3. NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE. A PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS LICENSE; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS LICENSE SHALL NOT EXCEED THE FEES ACTUALLY PAID UNDER THIS LICENSE, This Section shall survive the termination of this Trial License by a period of One (1) year from the date of termination.
10.1. SaaS Provider represents and warrants that it is an independent contractor with no authority to contract for SaaS Subscriber or in any way to bind or to commit SaaS Subscriber to any Trial License of any kind or to assume any liabilities of any nature in the name of or on behalf of SaaS Subscriber. Under no circumstances shall SaaS Provider, or any of its staff, if any, hold itself out as or be considered an agent employee, joint venture, or partner of SaaS Subscriber. In recognition of SaaS Provider’s status as an independent contractor, SaaS Subscriber shall carry no Workers’ Compensation insurance or any health or accident insurance to cover SaaS Provider or SaaS Provider’s agents or staff, if any. SaaS Subscriber shall not pay any contributions to Social Security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, nor provide any other contributions or benefits which might be expected in an employer-employee relationship. Neither SaaS Provider nor its staff, if any, shall be eligible for, participate in, or accrue any direct or indirect benefit under any other compensation, benefit, or pension plan of SaaS Subscriber.
10.2. This Trial License shall be governed by and construed in accordance with the laws of New Jersey and the federal laws of the United States of America. SaaS Provider and SaaS Subscriber hereby consent to and submit to the jurisdiction and forum of the state and federal courts in New Jersey in all questions and controversies arising out of this Trial License.
10.3. In any proceeding, informal or formal, by which one party either seeks to enforce this Trial License or seeks a declaration of any rights or obligations under this Trial License, the non-prevailing party shall pay the prevailing party’s costs and expenses, including but not limited to, reasonable attorneys’ fees.
10.4. Both parties agree to comply with all applicable federal, state, and local laws, executive orders and regulations issued with jurisdiction over the party, where applicable. SaaS Provider shall comply with SaaS Subscriber applicable policies and procedures where the same are conveyed or otherwise expressly made available to SaaS Provider.
10.5. Where approval, acceptance, consent or similar action by either party is required by any provision of this Trial License, such action shall not be unreasonably delayed or withheld. Each party will cooperate with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances in order that each party may properly accomplish its obligations and responsibilities hereunder. SaaS Provider will cooperate with any SaaS Subscriber supplier performing services, and all parties supplying hardware, software, communication services, and other services and products to SaaS Subscriber, including, without limitation, the Successor SaaS Provider. SaaS Provider agrees to cooperate with such suppliers, and shall not commit or permit any act which may interfere with the performance of services by any such supplier.
10.6. SaaS Provider shall not refer to SaaS Subscriber directly or indirectly by name in any advertisement, news release, or publication without prior written approval from SaaS Subscriber.
10.7. The failure of either party at any time to require performance by the other party of any provision of this Trial License shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Trial License be taken or held to be a waiver of any further breach of the same provision.
10.8. Any notice given pursuant to this Trial License shall be in writing and shall be given by personal service or by internationally recognized overnight courier to the addresses appearing at the end of this Trial License, or as changed through written notice to the other party. Notice given by personal service shall be deemed effective on the date it is delivered to the addressee, and notice delivered by and said carrier shall be deemed effective on the third day following its placement for delivery addressed to the addressee.
10.9. This Trial License and the obligations of SaaS Subscriber hereunder are personal to SaaS Subscriber. Neither SaaS Subscriber nor any successor, receiver, or assignee of SaaS Subscriber shall directly or indirectly assign this Trial License or the rights or duties created by this Trial License, whether such assignment is effected in connection with a sale of SaaS Subscriber’s assets or stock or through merger, an insolvency proceeding or otherwise, without the prior written consent of SaaS Provider. SaaS Provider, at SaaS Provider’s sole election, may assign any and all of its rights and obligations under this Trial License to any company that succeeds to substantially all of SaaS Provider’s business.
10.10. This Trial License may be signed in any number of counterparts, all of which taken together constitute one and the same Trial License. This Trial License and any of the Documentation may be executed and delivered by facsimile or other electronic means and the electronic signature of a party, or a signature transmitted or delivered by electronic means, shall be binding upon such party as fully as though such signature was executed by original and delivered in person.
10.11. This Trial License and its attached Schedules constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or licenses between SaaS Subscriber and SaaS Provider as to the subject matter hereof. This Trial License may only be amended by an instrument in writing signed by the parties. This Trial License shall be construed without regard to the party that drafted it. Any ambiguity shall not be interpreted against either party and shall, instead, be resolved in accordance with other applicable rules concerning the interpretation of contracts.
Acceptable Use Policy
1.1 This acceptable use policy (the "Policy") sets out the rules governing:
(a) the use of the website or Mobile App, any successor website or Mobile App, and the Hosted Services available on that website or any successor website; and
(b) the transmission, storage and processing of content by any user of SaaS Subscriber, or by any person on a user’s behalf, using the Hosted Services ("Content").
1.2 References in this Policy to "user" or "user’s" are to SaaS Subscriber’s individual users of the Hosted Services (“User”).
1.3 By using the Hosted Services, each User agrees to the rules set out in this Policy.
2. General usage rules
2.1 User must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or impairment of the availability or accessibility of the Hosted Services.
2.2 User must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
2.3 User must ensure that all Content complies with the provisions of this Policy.
3. Unlawful Content
3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content, and the use of Content by User in any manner licensed or otherwise authorized by User, must not:
(a) be libelous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trademark right, design right, copy right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order; and
(h) constitute a breach of any contractual obligation owed to any person.
3.3 User must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
4. Graphic material
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question.
4.2 Content must not depict violence in an explicit, graphic or gratuitous manner.
4.3 Content must not be pornographic or sexually explicit.
5. Factual accuracy
5.1 Content must not be untrue, false, inaccurate or misleading.
5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true and statements of opinion contained in Content and relating to persons, legal or natural, must be reasonable, honestly held and indicate the basis of the opinion.
6. Marketing and spam
6.1 Content must not constitute or contain spam, and User must not use the Hosted Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
6.2 User must not send any spam to any person using any email address or other contact details made available through the Hosted Services or that User find using the Hosted Services.
7.1 User acknowledges that SaaS Provider may actively monitor the Content and the use of the Hosted Services.
8.1 User must not link to any material using or by means of the Hosted Services that would, if it were made available through the Hosted Services, breach the provisions of this Policy.
9. Harmful software
9.1 The Content must not contain or consist of, and User must not promote or distribute by means of the Hosted Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
9.2 The Content must not contain or consist of, and User must not promote or distribute by means of the Hosted Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
(Microsoft Online Services Terms)