Fillable Printable SaaS Agreement - Soffront Software
Fillable Printable SaaS Agreement - Soffront Software
SaaS Agreement - Soffront Software
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SaaS Agreement
This Soffront SaaS Agreement (“Agreement”) is made and entered into on this date
____
_____________, by and between Soffront Software Inc. (“Soffront” or “Party”) a
California
corporation, and _____________________ (“Customer” or “Client” or “Subscriber” or
“Party”), with its principal place of business at
______________________________________________.
The Parties hereto agree as follows:
1. Contract Period
This Agreement is effective when signed by Customer and Soffront representatives (“Effective
Date”) Initial term of this Agreement is One Year starting from the Effective Date. This
Agreement shall automatically renew for additional terms of one (1) year each unless either Party
shall give notice of cancellation at least thirty (30) days prior to the expiration of the original term or
any renewal thereof. If Customer terminates this Agreement or elects to reduce the number of
Customer’s authorized end users (“Users”) of the Licensed Material, then, in addition to amounts due
for use of the Licensed Material and Support Services actually rendered prior to the termination of
this Agreement or reduction of Users, there shall be immediately due and payable by Customer an
amount equal to the 50% of the fees that would have been paid the remainder of the term but for the
termination or reduction of Users, as the case may be.
2. Billing and Payment
Payments are due in advance annually or bi-annually. Customer must have a credit card on file to
qualify for bi-annual payments. Service will not start until the payment is received. Services will be
terminated if payments are not received within the terms, after serving a seven days notice via email
or fax.
3. Representations and Warranties
General. Each Party represents and warrants that it has the right and authority to enter into this
Agreement, and that by entering into this Agreement, it will not violate, conflict with or cause a
material default under any other contract, agreement, indenture, decree, judgment, undertaking,
conveyance, lien or encumbrance to which it is a party or by which it or any of its property is or
may become subject or bound.
Compliance with the Laws. Each Party represents and warrants that no consent, approval or
authorization of or designation, declaration or filing with any governmental authority is required in
connection with the valid execution, delivery, and performance of this Agreement. Each Party
shall, at its own expense, comply with all laws, regulations and other legal requirements that apply
to it and this Agreement, including copyright, privacy and communications decency laws.
Acceptable Use. Customer is solely responsible for the content of any postings, data, or
transmissions using the Services, or any other use of the Services by Customer or by any person or
entity Customer permits to access the Services. Customer represents and warrants that it will: (a)
not use the Services in a manner that: (i) is prohibited by any law or regulation, or to facilitate the
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violation of any law or regulation; or (ii) will disrupt a third parties’ similar use or Licensed
Materials ; (b) not violate or tamper with the security of any Soffront computer equipment or
program;. If Soffront has reasonable grounds to believe that Customer is utilizing the Services for
any such illegal or disruptive purpose Soffront may suspend the Services immediately with or
without notice to Customer. Soffront may terminate the Agreement as contemplated in Section 11 if
Customer in fact fails to adhere to the foregoing acceptable use standards.
DISCLAIMER. THE WARRANTIES SET FORTH IN THIS SECTION 3 ARE THE ONLY
WARRANTIES MADE BY SOFFRONT. SOFFRONT MAKES NO OTHER WARRANTIES OF
ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, ANY RELATED
SERVICE OR SOFTWARE. SOFFRONT HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF
PERFORMANCE. NO ORAL OR WRITTEN INFORMATION GIVEN BY SOFFRONT, ITS
EMPLOYEES, LICENSORS, OR THE LIKE WILL CREATE A WARRANTY.
4. Limitation of Liability
Excluding the liability under the section entitled “NO INFRINGEMENT” below,
UNDER NO CIRCUMSTANCES WILL SOFFRONT OR ANYONE ELSE INVOLVED IN
ADMINISTERING, DISTRIBUTING OR PROVIDING THE SERVICES, BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT
FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING BUT NOT
LIMITED TO LOSS OF REVENUE OR LOST PROFITS, OR DAMAGES THAT RESULT
FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL,
ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE
OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO
SOFFRONT’S RECORDS, PROGRAMS OR SERVICES, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF ANY BREACH
BY SOFFRONT OF THIS AGREEMENT, SOFFRONT’S LIABILITY TO CUSTOMER WILL
NOT EXCEED THE AMOUNT PAID TO SOFFRONT BY CUSTOMER DURING THE
PREVIOUS THREE MONTHS.
NO INFRINGEMENT: Soffront warrants the Licensed Material will not infringe any
patent, trademarks, copyright or any proprietary rights of a third party or constitute a
misuse or misappropriation of a trade secret. Customer shall notify Soffront promptly in
writing of any known action brought against Customer based on an allegation that
Customer's use of any materials infringes any patent, trademark, copyright, or infringes
any right of a third party, or constitutes misuse or misappropriation of a trade secret
("Infringement"). Soffront will defend, indemnify and hold Customer harmless from any
such action at Soffront’s sole expense, provided that Soffront shall have the sole control
of the defense of any such action, all negotiations and/or its settlement, and Customer
reasonably cooperates with Soffront in such defense. In the event that a final injunction is
obtained against Customer’s use of the Services by reason of an Infringement or
Customer is otherwise prohibited from using same, Soffront shall to the extent possible
and at its expense, within sixty (60) days, either (a) procure for Customer the right to
continue to use the Services that are infringing, or (b) replace or modify the Services to
make its use noninfringing while being capable of performing the same function. If
neither option is available to Soffront, then Customer, at Customer's option, may
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terminate this Agreement without penalty or further payment other than payment of fees
for use of the Services prior to said termination.
5. Confidential Information
Definition. For purposes of this Agreement “Confidential Information” shall mean information
including, without limitation, all Customer data, computer programs, code, algorithms, names and
expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether
patentable or not), schematics and other technical, business, financial and product development
plans, forecasts, strategies and information marked “Confidential”, or if disclosed verbally, is
identified as confidential at the time of disclosure. In addition to the foregoing, Confidential
Information shall include third party software, if any, that may be provided to Customer under this
Agreement, including any related source or object codes, technical data, data output of such
software, documentation, or correspondence owned by the applicable licensor. Confidential
Information excludes information that: (i) was or becomes publicly known through no fault of the
receiving Party; (ii) was rightfully known or becomes rightfully known to the receiving Party
without confidential or proprietary restriction from a source other than the disclosing Party; (iii) is
independently developed by the receiving Party without the participation of individuals who have
had access to the Confidential Information; (iv) is approved by the disclosing Party for disclosure
without restriction in a written document which is signed by a duly authorized officer of such
disclosing Party; and (v) the receiving Party is legally compelled to disclose; provided, however,
that prior to any such compelled disclosure, the receiving Party will (a) assert the privileged and
confidential nature of the Confidential Information against the third party seeking disclosure and (b)
cooperate fully with the disclosing Party in protecting against any such disclosure and/or obtaining
a protective order narrowing the scope of such disclosure and/or use of the Confidential
Information. In the event that such protection against disclosure is not obtained, the receiving Party
will be entitled to disclose the Confidential Information, but only as, and to the extent, necessary to
legally comply with such compelled disclosure.
Nondisclosure
During this the term of this Agreement and for a period of 2 years thereafter, , each Party agrees to
maintain all Confidential Information in confidence to the same extent that it protects its own
similar Confidential Information, but in no event using less than reasonable care, and to use such
Confidential Information only as permitted under this Agreement; Each Party agrees to only
disclose the other Party’s Confidential Information to its employees: (a) with a need to know to
further permitted uses of such information; and (b) who are informed of the nondisclosure/ non-use
obligations imposed by this Section 5. Both parties shall take steps each determines appropriate to
implement and enforce such non-disclosure/non-use obligations.
Terms of Agreement Confidential. Each of the Parties agrees not to disclose to any third party the
terms of this Agreement, including pricing, without the prior written consent of the other Party
hereto, except to advisors, investors and others on a need-to-know basis under circumstances that
reasonably ensure the confidentiality thereof, or to the extent required by law.
Injunctive Relief. In the event of an actual or threatened breach of the above confidentiality
provisions, the non-breaching Party will have no adequate remedy at law and will be entitled to
immediate injunctive and other equitable relief, without bond and without the necessity of showing
actual money damages.
6. Customer Responsibility
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Customer is solely responsible for the content of communications transmitted by Customer using
the Services, and shall defend, indemnify and hold harmless Soffront from and against all liabilities
and costs (including reasonable attorneys’ fees) arising from any and all third-party claims by any
person based upon the content of any such communications.
Customer is not permitted to resell the Services.
Customer shall use the Services only for lawful purposes. To the extent deemed necessary by
Customer, Customer shall implement security procedures necessary to limit access to the Services
to Customer’s authorized users and shall maintain a procedure external to the Services for
reconstruction of lost or altered files, data or programs.
Customer is responsible for establishing designated points of contact to interface with Soffront.
7. Licenses
Soffront hereby grants to customer a personal, nonexclusive, nontransferable license during the
term of this Agreement to use, in object code form, all software and related documentation provided
by Soffront (“Licensed Material”), which may be furnished to Customer under this Agreement.
Customer agrees to use commercially reasonable efforts to ensure that its employees and users of all
Licensed Material hereunder comply with the terms and conditions set out in this Agreement.
Customer also agrees to refrain from taking any steps, such as reverse assembly or reverse
compilation, to derive a source code equivalent to the Licensed Material. All Licensed Material
furnished to Customer under this Agreement shall be used by Customer only for Customer’s
internal business purposes, shall not be reproduced or copied in whole or in part, and shall not be
removed from the United States.
8. Customer Data
All data is owned by Customer and is to be strictly held as confidential. Soffront will delete and
destroy all copies of data once the Agreement is terminated with or without default. Customer has
the option to receive a backup of data prior to deletion per section 10.
All right, title and interest in and to the Licensed Material, and all copyrights, patents, trademarks,
service marks or other intellectual property or proprietary rights relating thereto, belong exclusively
to Soffront. Any modification to the Software performed by Customer directly or indirectly
extending the current capabilities shall be the property of Soffront and all copyrights and other
rights are hereby assigned to Soffront.
9. Service Performance Guarantees
Soffront guarantees 99.9% availability of the hosting Services. All credit requests should be sent via
U.S. Postal Mail to the following address:
Soffront Software
45437 Warm Springs Blvd.
Fremont, CA 94539
Soffront will acknowledge all requests for credit within (10) business days of receipt and inform
Customer via email or U.S. Postal Mail within thirty (30) days whether the request is approved or
denied. Credits will be issued within 30 days from credit approval.
The duration of a Service Outage will be determined by summing the amount of time Customer
Trouble Tickets are open with the appropriate Soffront Customer Care person for the service. The
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time starts with the opening of a trouble ticket by Soffront Customer Support and ends when
Soffront Customer Support notifies customer of the restoration of the service.
All claims are subject to review and verification by Soffront.
Soffront reserves the right to change or modify the foregoing rules or discontinue this limited
guarantee program with 30-days prior written notification to Customer.
10. Back-up of Data
Soffront will deliver a full backup of customer Data in .BAK format in a CD by US priority mail, if
customer agrees to pay a charge of $50 per backup copy.
11. Termination
If a Party fails to perform or observe any material term or condition of this Agreement and the
failure continues unremedied for seven (7) days after receipt of written notice, (1) the other Party
may terminate this agreement, or (2) where the failure is a nonpayment by Client of any charge
when due, Soffront, may, at its option, terminate or suspend Services with or without any notice.
If a Party fails to perform or observe any material term or condition of this Agreement and the
failure continues unremedied for thirty (30) days after receipt of written notice, the other Party may
terminate this agreement; provided, however, that where the breach is the failure of payment by
Customer of any charge when due, Soffront, may, at its option, terminate or suspend Services if
Customer does not cure said breach within seven (7) days following notice to Customer of the
delinquency.
This Agreement may be terminated immediately upon written notice by either Party if the other
Party becomes insolvent or involved in a liquidation or termination of business, files a bankruptcy
petition, has an involuntary bankruptcy petition filed against it (if not dismissed within thirty days
of filing), becomes adjudicated bankrupt, or becomes involved in an assignment for the benefit of
its creditors.
Customer shall be responsible for payment of all charges under a terminated Agreement incurred as
of the effective date of termination.
12. General Provisions & Force Majeure
(a)
This Agreement, including any amendments and attachments hereto that are incorporated
herein, constitute the entire agreement between the parties and shall be binding on the parties
when
accepted by Customer. No modification, termination or waiver of any provisions of this
Agreement shall be binding upon a Party unless in writing signed by an authorized officer
of the
relevant Party(ies). No provision of any purchase order or other document issued by
Customer, which
purports to alter, vary, modify or add to the provisions of this Agreement,
shall be binding upon Soffront or effective for any purpose, unless accepted by Soffront in
writing
It is further expressly understood and agreed that, there being no expectations to the contrary
between the parties, no usage of trade or other regular practice or method of dealing either within
the computer software industry, Soffront’s industry or between the parties shall be used to
modify, interpret, supplement, or alter in any manner the express terms of this Agreement or any
part there of.
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(b) Nothing contained in this Agreement shall be construed as creating a joint venture,
partnership, or employment relationship between the parties, nor shall either Party have the right,
power, or authority to create any obligation or duty, express or implied, on behalf of the other.
c) The Licensed Materials shall not be exported or re-exported in violation of any export
provisions of the United States or any other applicable jurisdiction.
(d) This Agreement may not be assigned, sublicensed or transferred, in whole or in part, by
Customer
without the prior written consent of Soffront. Any attempted assignment, subletting or
transfer
shall be void.
(e) If any provision or provisions of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
(f) No delay or failure of Soffront or Customer in exercising any right herein and no partial or
single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other
rights
herein. Any waiver by Soffront or Customer of any breach of any provision of this
Agreement
shall not operate or be construed as a waiver of any subsequent or other breach.
(g) In the event that either Party is unable to perform any of its obligations under this Agreement
or to enjoy any of its benefits because of natural disaster, terrorism
, fire, explosion, power
blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military
authority, war, acts of god, acts or omissions of carriers or suppliers, acts of regulatory or
governmental agencies,
actions or decrees of governmental
bodies or communication line failure
not the fault of the affected Party or other causes beyond such Party’s reasonable control (a “Force
Majeure Event”) the Party who has been so affected shall immediately give notice to the other
Party and shall do everything possible to resume performance. Upon receipt of such notice, all
obligations under this Agreement shall be immediately suspended. If the period of
nonperformance exceeds seven (7) days from the receipt of notice of the Force Majeure Event, the
Party whose ability to perform has not been so affected may by giving written notice immediately
terminate this Agreement as provided in Section 11
(h) On Soffront’s request, no more frequently than annually, Customer shall furnish Soffront with
a signed certification (i) verifying that the Licensed Material is being used pursuant to the terms
of
this Agreement and (ii) listing the locations where the Licensed Material
is being used
(i) This Agreement may be executed in two or more counterparts, each of which shall be deemed
to be an original, and each of which together shall constitute a single instrument.
(j) This Agreement shall be governed by and construed under the laws of the State of California
applicable to contracts made in and wholly to be performed in the State of California without regard
to conflicts of law.
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_________________________________________________________________________
Signature below by your authorized representative is your consent to
the terms and conditions of this agreement
_________________________________________________________________________
Customer: Soffront Software Inc.
By: ___________________________ By: _________________________
Print: _________________________ Print: ______________________
Title_________________________ Title________________________
Date: ______________________ Date: ________________________
