SERVICE AGREEMENT

This Service Agreement, along with any Order (defined below) and other documents incorporated by reference (collectively, this “Agreement”) creates a binding agreement between SaaSync, LLC (“SaaSync”) and you, or if you represent an entity or other organization, that entity or organization (in either case, “Customer” or “you”). This Agreement governs Customer’s access to and use of the Platform (defined below) and the Services (defined below) available through the SaaSync website available at https://www.saasync.com/ or other websites operated by SaaSync (each, a “Site”). You represent and warrant that you are entering into this Agreement on behalf of Customer and that you have the authority to bind Customer to this Agreement.

PLEASE CAREFULLY READ THIS AGREEMENT. BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THIS AGREEMENT OR AN ORDER, OR BY ACCESSING OR USING THE PLATFORM OR SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, SAASYNC IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM OR SERVICES AND YOU MUST NOT ACCESS OR USE THE PLATFORM OR SERVICES. IF YOU ACCESS OR USE THE PLATFORM OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT.

Any Order is considered an offer and SaaSync is willing to provide the Services to Customer only on condition that Customer accepts all the terms in this Agreement. Any different or additional terms and conditions set forth in any purchase order, confirmation, statement of work, order form or similar ordering document are rejected and shall have no force or effect on the Agreement unless it is an amendment or addendum to the Agreement signed by authorized representatives of both parties.

If Customer has entered into a signed written agreement or other online agreement with SaaSync for the Services prior to this Agreement, then this Agreement shall supersede and take precedence over any such earlier agreement. This Agreement shall be the entire agreement between the parties regarding the Platform and Services and any earlier agreement is hereby terminated.

This Agreement is entered into as of the earlier of the date you first accessed the Platform or Services (the “Effective Date”) and will continue until terminated as set forth herein.

DEFINITIONS
1.1 “Affiliate” means, with respect to a party, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity through the ownership of fifty percent (50%) or more of the outstanding voting securities (but only for as long as such entity meets these requirements).
1.2 “API” means application programming interface.
1.3 “API Call” means an authenticated API interaction facilitated in connection with the Platform.
1.4 “Clients” means the clients of Customer.
1.5 “Customer Data” means the digital content, data, and information input into the Platform by Customer and Users or on behalf of Customer by Service Providers.
1.6 “Documentation” means any user materials, instructions, and specifications made available by SaaSync to Customer for the Services as part of the Platform.
1.7 “API Integration” means a connection that enables the flow of data between Customer and a specific cloud application or cloud service endpoint for a Third Party Service whether existing in the Platform or built using the Platform.
1.8 “Order” means the initial quotation, proposal, or order for Services executed by Customer and SaaSync into which this Agreement is incorporated, and such additional quotations, proposals, or orders for Services as may be agreed to from time to time under this Agreement. The term “Order” includes any quotation, proposal, or order for Services made online through any ordering process on the Site through which Customer orders Services.
1.9 “Platform” means the SaaSync proprietary integration platform as a service utilized by SaaSync to provide the Services to Customer under this Agreement.
1.10 “Service Provider” means any of Customer’s service providers that Customer has instructed to provide Customer Data to SaaSync through an API Integration.
1.11 “Services” means the SaaSync services as described in an Order to this Agreement, which may include the provision of services related to: (a) custom API Integrations; (b) data cleansing; and (c) data enrichment.
1.12 “Software” means SaaSync proprietary software programs made available by SaaSync as part of the Platform, including any modified, updated, or enhanced versions of such software that may become part of the Software.
1.13 “Third Party Agreement” means a separate agreement between Customer and a third party for Third Party Services to which SaaSync is not a party.
1.14 “Third Party Services” means the cloud applications, cloud service endpoints, data services, software, and content of third parties to which Customer may access and connect using the Platform.
1.15 “User” means any individual user of the Platform or Services for whom access to the Platform is authorized by Customer, which may include Customer employees, Customer’s Clients, and Service Providers.
PLATFORM AND SERVICES
2.1 Provision of Platform. Subject to the terms and conditions of this Agreement, SaaSync grants to Customer, during the Term, a non-exclusive, non-transferable (except as permitted by Section 11.2), non-sublicensable license to access and use the Platform solely for Customer’s internal business purposes to use API Integrations with Third Party Services. Customer may only use the Platform in accordance with this Agreement and the Documentation provided by SaaSync. Under the rights granted to Customer in this Agreement, Customer may permit employees and Service Providers of Customer, Customer’s Affiliates, and Clients to become authorized Users in order to access and use the Platform in accordance with this Agreement; provided that Customer shall be fully responsible for all Users’ compliance with the applicable provisions of this Agreement. Customer shall be liable for the acts and omissions of all Users associated with Customer to the extent any of such acts or omissions, if performed by Customer, would constitute a breach of or otherwise give rise to liability to Customer under this Agreement. Customer shall not and shall not permit or encourage any User to use the Platform except as expressly permitted under this Agreement. SaaSync and its licensors reserve all rights in and to the Platform not expressly granted to Customer under this Agreement.
2.2 Provision of Services. Subject to the terms and conditions of this Agreement, SaaSync shall provide the Services to Customer pursuant to any applicable Order and this Agreement. Purchase by Customer of the Services is not contingent on the provision of any future functionality or features, or dependent on any oral written public comments made by SaaSync regarding future functionality or features.
2.3 Third Party Services. The Platform and Services utilize APIs for access and connectivity to Third Party Services. Customer and its Users are responsible for determining which Third Party Services are accessed and connected to by Customer and its Users. SaaSync does not control or own any Third Party Services, and the access to and use of such Third Party Services, including the availability and uptimes related to such Third Party Services, is solely determined by the relevant third parties that control such Third Party Services. SaaSync shall not be liable for any downtime, discontinuation, or any other issues with or caused by the Third Party Services, or any disputes that arise between Customer or its Users and third parties providing Third Party Services. In order to access and use a Third Party Service, the applicable third party may require that Customer or its Users agree to a Third Party Agreement with such third party in order for Customer to access and use the applicable Third Party Service and such third party may require additional consents to allow Customer and its Users to connect the Third Party Service to the Platform. The terms of any Third Party Agreement (which may include payment of additional fees) will apply to the applicable Third Party Services provided under that Third Party Agreement in addition to the terms of this Agreement, but will not apply to any other Services Customer may access through SaaSync. Not all products and services advertised through the Third Party Services may be available for purchase, and Customer’s eligibility for particular products and services is subject to final determination by the applicable third parties.
ACCOUNT
3.1 Accounts. Customer is permitted to access certain Platform or Services features without establishing an account on the Platform, provided that Customer has agreed to this Agreement. However, access to and use of certain aspects of the Platform and Services may require that Customer establish an account (an “Account“) through the Platform. Approval of Customer’s request to establish an Account will be at the sole discretion of SaaSync. Customer may authorize designated Users to use and access the Platform and Services on Customer’s behalf through Customer’s Account (Customer and each such individual, a “User” of the Customer’s Account). If an Account is only associated with Customer, then Customer may use and access the Platform and Services through an Account as the sole User of the Account. Each user identification and password for an Account (each, an “Account ID”) is personal in nature and may be used only by Customer or, as applicable, the User to whom the Account ID is issued.
3.2 Account Registration. In connection with establishing an Account, Customer will be asked to submit certain information about Customer, its Users, and, as applicable, Customer’s or its Users’ organization and API access rights (“Registration Information”). Customer agrees that: (a) all such Registration Information will be accurate, complete, and current; (b) Customer will maintain and promptly update all such Registration Information to keep it accurate, complete, and current; and (c) Customer will not provide any unauthorized information belonging to another person or organization with the intent to impersonate that person or organization without authorization. Before posting any Registration Information of Users associated with Customer’s Account, Customer is responsible for obtaining any and all authorizations required by federal or state law to authorize the sharing of any User’s Registration Information, including their personal information, on the Platform. SaaSync is not liable for any invasion of privacy or other claim that may be asserted by Users of Customer’s Account as a result of Customer posting of Registration Information regarding Users of Customer’s Account on the Platform and the subsequent sharing of that information with other users of the Platform as described in the Privacy Policy. By providing Registration Information, Customer authorizes SaaSync to disclose such information as described in the Privacy Policy.
3.3 Responsibilities. Customer is solely responsible for all access to and use of Customer’s Account, including all data and Services accessed through Customer’s Account. SaaSync may deem any actions taken through Customer’s Account to have been authorized by Customer. Customer is responsible for compliance, and the compliance of any Users, with this Agreement. Customer will ensure the security and confidentiality of each Account ID and will notify SaaSync immediately if any Account ID is lost, stolen, or otherwise compromised. Customer is fully responsible for all costs, fees, liabilities, or damages incurred, and material transferred, stored, modified, or shared through the use of each Account ID (whether lawful or unlawful, authorized or unauthorized). Customer acknowledges that any Orders made or other transactions completed through Customer’s Account will be deemed to have been lawfully completed by Customer. In no event will SaaSync be liable for the foregoing obligations or the failure by Customer to fulfill such obligations.
3.4 Account Authority. Customer shall have authority to manage Customer’s Account, including decisions relating to: (a) addition or removal of Users; (b) permissions to access Customer’s Account; (c) disputes regarding any Users or Third Party Services related to Customer’s Account; (d) notices and other communications relating to Customer’s Account; (e) API Interactions related to Customer’s Account; and (f) any other decisions that may be required regarding Customer’s Account.
FEES AND PAYMENT TERMS
4.1 Fees. Customer shall pay the fees for the Platform as selected by Customer through the Platform in accordance with the terms set forth on the Platform and for the Services set forth in the applicable Order in accordance with terms set forth in the applicable Order (“Fees”). Fees are exclusive of, and Customer shall be responsible for and pay all taxes, fees (including payment processing fees), duties, and other governmental charges arising from the payment of any Fees or any amounts owed to SaaSync under this Agreement (excluding any taxes arising from SaaSync income or any employment taxes). Fees for any Services requested by Customer that are not set forth through the Platform or in an Order will be charged as mutually agreed to by the parties in writing. All payments received by SaaSync are non-refundable except as otherwise expressly provided in this Agreement. Customer shall make all payments in United States dollars unless otherwise agreed to by the parties.
4.2 Overage. If Customer exceeds: (a) the quantity of API Instances purchased by Customer; (b) the number of permitted Users; or (c) any another specified usage limitations as set forth through the Platform or in the applicable Order, within 30 days after the end of the applicable period, SaaSync shall provide Customer with an invoice for the applicable Fees for such excess quantity or the usage in excess of such limitations, and such invoice shall include a report detailing the quantities of API Instances, number of Users, and excess usage on monthly basis during the preceding period. Customer shall pay to SaaSync all undisputed amounts set forth in such invoice in accordance with Section 4.3. If Customer has a good faith dispute of any overage fees contained in such invoice, Customer shall notify SaaSync and the parties will discuss any disputed amounts in good faith in an effort to seek resolution within 60 days after SaaSync’s receipt of such notice.
4.3 Subscriptions. Access to certain aspects of the Platform provided by SaaSync may require Customer to purchase a subscription for a period of time as specified during sign-up thereto (collectively, a “Subscription”). In connection with any Subscriptions that Customer selects to purchase, Customer must provide SaaSync (or its third party payment processor(s)) with a current, valid, accepted method of payment, which may change from time to time ("Payment Method"). All Subscription purchases are subject to any additional terms and conditions, including any fees, imposed by Customer’s financial services provider and/or mobile carrier, as applicable. By linking any Payment Method to Customer’s Account in connection with any Subscription, Customer hereby authorize SaaSync (or its third-party payment processor(s)) to charge the total cost of said Subscription and agree to be responsible for all associated charges. Should charges for which Customer is responsible fails at the time payment is required, Customer will be responsible for costs associated with SaaSync's efforts to collect amounts due. Customer represent and warrant that all information Customer provides in connection with the purchase of a Subscription is true, up-to-date, accurate and complete and that Customer has the right to provide SaaSync with the Payment Method. SaaSync reserves the right to offer Subscriptions for the durations and at the corresponding costs that we determine appropriate, in our sole discretion.
4.4 Subscription Automatic Renewals. In order to provide continuous service, SaaSync automatically renews all Subscriptions on the date the Subscription expires. Such renewals will be for the same duration of the original subscription term. By enrolling in a Subscription, Customer agrees that any Subscription will be subject to the above-described automatic renewals. YOUR SUBSCRIPTION WILL REMAIN IN EFFECT AND CONTINUE TO RENEW AUTOMATICALLY (AND YOUR PAYMENT METHOD ON FILE WILL CONTINUE TO BE CHARGED AUTOMATICALLY AND WITHOUT NOTICE TO CUSTOMER) UNTIL CANCELLED AS SET FORTH HEREIN.
4.5 Subscription Cancelation. IF CUSTOMER WISHES TO CANCEL AUTOMATIC SUBSCRIPTION RENEWALS, CUSTOMER MAY DO SO BY NOTIFYING SAASYNC AND REQUESTING TO CANCEL AUTOMATIC SUBSCRIPTION RENEWALS. SaaSync will make reasonable efforts to process cancellation requests within two business days from the receipt of the cancellation request. If Customer cancels, Customer’s Subscription will end at the end of the then current Subscription period, and no refunds for previously paid Subscriptions will be issued.
4.6 Payment Terms. Unless an applicable Order provides otherwise with regard to certain Services, Customer shall pay the Fees due for Services within 30 days after Customer’s receipt of the applicable invoice. SaaSync may charge interest on all past due invoices at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. If Customer’s Account becomes past due, Customer will receive written notice to that effect. If Customer fails to pay all past due amounts within 10 business days after notification, SaaSync may suspend access to the Platform and the provision of all Services until such time as Customer pays all past due amounts. If Customer continues to be habitually delinquent in its payments, SaaSync may, upon written notice to Customer, (a) terminate this Agreement for breach without an opportunity to cure, or (b) the payment terms shall be modified to require full payment before the provision or continued use of all Services (both currently contracted and scheduled future provisioned), or require other assurances to secure Customer’s payment obligations hereunder.
TERM AND TERMINATION
5.1 Term of Agreement. The term of this Agreement shall begin on the Effective Date and continue until terminated as provided below or the later to occur: (a) all Subscriptions have been canceled; or (b) all Orders have expired (the “Term”).
5.2 Termination for Cause. Either party may terminate this Agreement or an Order upon notice if the other party breaches any material provision of this Agreement and does not cure such breach (provided that such breach is capable of cure) within 30 days after being provided with written notice of such breach.
5.3 Effect of Termination. Upon the effective date of termination of this Agreement: (a) all amounts owed to SaaSync under this Agreement before such termination will be due and payable in accordance with Section 4, (b) all Subscriptions and Orders will terminate and SaaSync shall cease providing the Platform and Services to Customer, (c) all rights granted in this Agreement, including those rights to access and use the Platform and Services, will cease, and (d) within 30 days after such termination, each party shall return or destroy all Confidential Information of the other party in its possession and shall not make or retain any copies of such Confidential Information, except (i) as required to comply with any applicable legal or accounting record keeping requirement or (ii) that a party may retain Confidential Information in a party’s archived backup files. Unless Customer terminates this Agreement for SaaSync’s uncured breach in accordance with Section 5.2, such termination shall not terminate or affect Customer’s obligation to pay all Fees for the entire Term for Subscriptions and Services agreed upon by Customer and Customer shall not be entitled any refund of prepaid Fees. Sections 1, 4, 5.3, 6, 7, 8, 9, 10, and 11, and all payment obligations shall survive termination of this Agreement.
CONFIDENTIALITY
6.1 Definitions. “Confidential Information” means all confidential and proprietary information disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Agreement during the Term. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be confidential and proprietary to Discloser or to a third party, whether or not such information is designated as confidential. SaaSync’s Confidential Information includes the Software, the Platform, and the Documentation. Customer’s Confidential Information includes Customer Data.
6.2 Protection. Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Agreement, and shall not disclose Confidential Information to anyone other than Recipient’s employees, independent contractors, and Users who have a need to know such Confidential Information for purposes of this Agreement and who are subject to written confidentiality obligations no less restrictive than Recipient’s obligations under this Section. Additionally, SaaSync may provide Customer Data to Third Party Services that have been authorized by Customer. Recipient shall protect Confidential Information from unauthorized access and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
6.3 Exceptions. Recipient shall have no confidentiality obligations under Section 6.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient prior to Discloser’s disclosure; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the party who disclosed the information; or (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of Confidential Information. Recipient may disclose Confidential Information if required to as part of a judicial process, government investigation, legal proceeding, or other similar process, provided that, to the extent permitted by applicable law, Recipient gives prior written notice of such requirement to Discloser. Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser.
PROPRIETARY RIGHTS
7.1 Customer. As between the parties, Customer owns all right, title, and interest in Customer Data, including all intellectual property rights therein. Any rights not expressly granted to SaaSync hereunder are reserved by Customer, its licensors and suppliers. Customer hereby grants to SaaSync, during the Term, a limited, non-exclusive, non-transferable (except as permitted by Section 11.2), non-sublicensable license to use the Customer Data solely for the limited purposes of providing the Platform and performing the Services for Customer under this Agreement.
7.2 SaaSync. All proprietary technology utilized by SaaSync to perform its obligations under this Agreement, and all intellectual property rights in and to the foregoing, as between Customer and SaaSync, are the exclusive property of SaaSync. SaaSync, its third party licensors, and any Third Party Service providers retain ownership of all right, title, and interest to all copyrights, patents, trademarks, trade secrets, and other intellectual property rights in and to the Platform, including without limitation the Software, all API Instances, SaaSync’s database (and all data therein except for Customer Data), Documentation, customizations, and enhancements, and all processes, know-how, and the like utilized by or created by SaaSync in performing under this Agreement. Any rights not expressly granted to Customer hereunder are reserved by SaaSync.
7.3 Restrictions. Except as expressly provided for in the documentation or by the terms of this Agreement, Customer shall not: (a) directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code, trade secrets or know-how in or underlying the Platform or any portion thereof, (b) use the Platform or any APIs accessed through the Platform for any illegal, unauthorized, or otherwise improper purposes; (c) modify or make derivative works of any part of the Platform or; (d) access the Platform in order to build a similar or competitive product or service; (e) exceed the limit of API Calls per API Instance per month as set forth in the Documentation; or (f) use the Platform in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the Documentation or this Agreement.
7.4 General Skills and Knowledge. Subject to Section 6, nothing in this Agreement prohibits SaaSync from utilizing any skills or knowledge of a general nature gained or created by SaaSync during the course of providing the Platform or Services, including, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of SaaSync.
7.5 Usage Data. SaaSync may publish, share, or otherwise distribute analytics, statistics or other data related to Customer’s and its Users’ use of the Platform, Software, Services, and API’s accessed using the Platform (“Usage Data”), provided that: (a) such Usage Data is aggregated with data from other SaaSync customers or users in a manner that does not reasonably allow Usage Data to be separated from such aggregate data and identified as relating to Customer and (b) if the Usage Data is not aggregated or the Usage Data can be identified as relating to Customer, then SaaSync may (i) only use such Usage Data for internal purposes and (ii) SaaSync may not publish, share, or otherwise distribute such Usage Data.
7.6 Data Protection. To the extent that Customer Data contains personal information, SaaSync shall implement and maintain during the Term of this Agreement reasonable and appropriate administrative, technical, and physical security measures to protect Customer Data that are appropriate to the nature of the information, and SaaSync shall comply with the processing terms contained in the SaaSync Data Processing Addendum incorporated by reference into this Agreement, available at saasync.com/data-processing-addendum.
REPRESENTATIONS AND WARRANTIES
8.1 Performance Warranty. SaaSync warrants that the Platform will perform substantially as described in the associated Documentation when operated in accordance with the Documentation. SaaSync shall use reasonable efforts to correct any reproducible error in the Platform that indicates a breach of the foregoing warranty reported by Customer within 30 days after Customer experiences the error. If SaaSync is unable to correct a properly reported error within 30 days, Customer shall have the right to terminate the portion of this Agreement that applies to the nonconforming portion of the Platform. SaaSync shall have no obligation to undertake any action for any error caused by: (a) Customer or a third party; (b) the quality or integrity of Customer Data; or (c) the combination of the Platform with third party products or materials. Customer’s sole and exclusive remedy and SaaSync’s sole and exclusive obligation for errors in the Platform or nonconformity with this warranty shall be as set forth in this Section 8.1.
8.2 Representations and Warranties by Customer. SaaSync is not the source of any data and Customer’s rights and obligations regarding the access and use of data through the Platform is subject to the applicable Third Party Agreements related to the source of the data. Accordingly, Customer represents and warrants that: (a) that it shall comply with and shall not violate any Third Party Agreements in connection with the Platform or Services; (b) it has the right to (i) use the Customer Data as contemplated by this Agreement and (ii) grant SaaSync the license in Section 7.1. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, SaaSync shall have the right to suspend access and use of the Platform or Services in order to prevent harm to SaaSync or its business and to limit any potential liability. If practicable, SaaSync shall provide notice and opportunity to cure. Once cured, at SaaSync’s discretion, SaaSync shall use reasonable efforts to promptly restore access and use of the Platform and Services.
8.3 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 8, THE PLATFORM AND SERVICES ARE PROVIDED SOLELY ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE PLATFORM AND SERVICES IS AT ITS SOLE RISK. SAASYNC, ITS THIRD PARTY LICENSORS, AND ANY THIRD PARTY SERVICE PROVIDERS DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES. SAASYNC, ITS THIRD PARTY LICENSORS, AND ANY THIRD PARTY SERVICE PROVIDERS DO NOT WARRANT THAT THE PLATFORM OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
LIMITATION OF LIABILITY. IN NO EVENT WILL CUSTOMER OR SAASYNC, AND ITS THIRD PARTY LICENSORS, AND ANY THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOST REVENUE, LOST PROFITS, COST OF REPLACEMENT OF GOODS OR SERVICES, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE OF SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER AND SAASYNC, AND ITS THIRD PARTY LICENSORS, AND ANY THIRD PARTY SERVICE PROVIDERS, TOTAL LIABILITY TO THE OTHER PARTY FOR ANY REASON (WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY) IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT PAID OR OWED BY CUSTOMER TO SAASYNC DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 SHALL NOT APPLY TO (A) LIABILITY ARISING FROM A PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY), (B) A PARTY’S OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION), OR (C) A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
INDEMNIFICATION
10.1 Claims Against Customer. SaaSync shall defend any claim, suit, or action against Customer brought by a third party to the extent based on an allegation that the Software infringes any intellectual property rights of such third party (“Customer Claim”), and SaaSync shall indemnify and hold Customer harmless, from and against damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying SaaSync in writing of such Customer Claim, but late notice shall only relieve SaaSync of its obligation to indemnify to the extent that it has been prejudiced by the delay; (b) giving SaaSync sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at SaaSync’s request and expense, assisting in such defense. In the event that the use of the Platform is enjoined, SaaSync shall, at its option and at its own expense either (i) procure for Customer the right to continue using the Platform; (ii) replace the Software with a non-infringing but functionally equivalent product; (iii) modify the Software so it becomes non-infringing; or (iv) terminate this Agreement and refund the Fees Customer paid for Platform access that relates to the period during which Customer was not able to use the Platform. Notwithstanding the foregoing, SaaSync will have no obligation under this Section 10.1 with respect to any infringement claim based upon: (1) any use of the Platform not in accordance with this Agreement; (2) any use of the Platform in combination with products, equipment, software, or data that SaaSync did not supply or approve of if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (3) any modification of the Platform by any person other than SaaSync or its authorized agents or independent contractors. This Section 10.1 states SaaSync’s entire liability and Customer’s sole and exclusive remedy for infringement claims or actions.
10.2 Claims Against SaaSync. Customer shall defend, any claim, suit, or action against SaaSync brought by a third party to the extent that such claim, suit or action is based upon: (a) Customer’s failure to comply with or violation of any Third Party Agreement; (b) on an allegation that the Customer Data infringes any intellectual property rights of such third party; (c) use by Customer of any Third Party Services or data accessed through the Services (“SaaSync Claim”) and Customer shall indemnify and hold SaaSync harmless, from and against Losses that are specifically attributable to such SaaSync Claim or those costs and damages agreed to in a settlement of such SaaSync Claim. The foregoing obligations are conditioned on SaaSync: (i) promptly notifying Customer in writing of such SaaSync Claim, but late notice shall only relieve Customer of its obligation to indemnify to the extent that it has been prejudiced by the delay; (ii) giving Customer sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer will have no obligation under this Section 10.2 with respect to any SaaSync Claim to the extent based upon SaaSync’ use of the Customer Data in violation of this Agreement.
MISCELLANEOUS PROVISIONS
11.1 Independent Contractor. SaaSync acknowledges that it is an independent contractor, and neither Customer nor SaaSync is intended to or should be construed to be an agent, partner, joint venture or employee of the other. Neither party has any authority to bind or otherwise obligate the other party in any manner, and neither party may represent to anyone that it has a right to do so.
11.2 Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent, such consent shall not be unreasonably withheld or delayed; except that a party may assign this Agreement without consent from the other party by operation of law or otherwise to: (a) an Affiliate; or (b) any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be void. This Agreement does not confer any rights or remedies upon any person or entity not a party hereto.
11.3 Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of any event which is beyond the reasonable control of such party (“Force Majeure Event”) provided that the delayed party: (a) gives the other party prompt notice of such Force Majeure Event; and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If SaaSync is unable to provide the Platform or Services for a period of 60 consecutive calendar days as a result of a continuing Force Majeure Event, Customer may terminate this Agreement or any Order without further obligation, penalty, or late fee. Payment obligations may be delayed but not excused due to a Force Majeure Event.
11.4 Notices. Unless otherwise specified in an Order, any notices required or allowed under this Agreement will be provided to SaaSync by postal mail to the address for SaaSync listed on the Platform. SaaSync may provide Customer with any notices required or allowed under this Agreement by sending Customer an email to any email address Customer Provides in Customer’s Account, or an Order, provided that in the case of any notice applicable both to Customer and other Users of the Platform, SaaSync may instead provide such notice by posting on the Platform. Notices provided to SaaSync will be deemed given when actually received by SaaSync. Notice provided to Customer and Users will be deemed given immediately after posting to the Platform or sending via email, unless (as to email) the sending party is notified that the email address is invalid.
11.5 Feedback. If Customer provides SaaSync any feedback or suggestions regarding the Platform or Services (“Feedback”), Customer hereby assign to Customer all rights in the Feedback and agrees that SaaSync shall have the right to use such Feedback and related information in any manner it deems appropriate without a duty of accounting to Customer. Customer will treat any Feedback Customer provides to SaaSync as non-confidential and non-proprietary. Customer agrees that Customer will not submit to SaaSync any information or ideas that Customer considers to be confidential or proprietary.
11.6 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Colorado without reference to its choice of law rules. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in Denver, Colorado in any litigation arising out of this Agreement or the Services.
11.7 Remedies. Except as otherwise expressly provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Each party acknowledges and agrees that any actual or threatened breach of Sections 6 or 7 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party.
11.8 Compliance with Laws. Each party shall comply with those laws and regulations in jurisdictions that are specifically applicable to the such party. Neither party shall export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information in violation of export control laws or regulations of the U.S. Government or of any country within whose jurisdiction Customer operates or does business.
11.9 No Third Party Beneficiaries. Except with respect to any provision expressly designating a third party as a beneficiary of this Agreement, nothing in this Agreement, express or implied, confers or is intended to confer upon or give to any person or entity, other than the parties, any interests, rights, remedies or other benefits with respect to or in connection with this Agreement. The express designation of a third party beneficiary (if any) is limited to only those rights expressly identified by the designation.
11.10 Waivers. To be effective, any waivers must be in writing and signed by the party granting such waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.11 Severability. If any provision of this Agreement is, for any reason, held to be unenforceable, the other provisions of this Agreement will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).
11.12 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
11.13 Entire Agreement. This Agreement, including any Order, exhibits, addenda, attachments thereto, or any documents referenced by hyperlink, constitute the final and entire agreement between the parties regarding the subject hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. To the extent of any conflict between the provisions of this Agreement and the provisions of any Order, the provisions of the Agreement shall govern, unless specifically referenced in the Order that such identified reference section shall control. No amendment to this Agreement will be effective unless in writing and signed by both parties.
11.14 Modifications. SaaSync reserves the right, at its sole discretion, to change, modify, or otherwise alter this Agreement at any time. Customer can find the most recent version of this Agreement at saasync.com/service-agreement and the last date of modification shall be noted at the bottom of this Agreement. Such modifications shall become effective immediately upon posting. Customer must review this Agreement on a regular basis to keep itself apprised of any modifications. If the terms of the Agreement are modified in a manner that materially reduces Customer’s rights or materially reduces SaaSync’s obligations, Customer may terminate this Agreement, and its access to and use of the Platform and Services, as Customer’s sole remedy. Such termination right shall be exercisable by notice to SaaSync no later than 30 days after such modification has been implemented. In the event of such termination, SaaSync shall provide a refund of any Fees previously paid to SaaSync with respect to the then-remaining portion of any prepaid Subscription or Services not yet performed under an applicable Order. Customer’s continued access to and use of the Platform and Services after any modification to this Agreement will be deemed to be Customer’s agreement and consent to the updated Agreement. Except as otherwise provided in this Section, no amendment to this Agreement will be effective unless in writing and signed by both parties.
Last Modified: September 23, 2020