Software as a Service
This Software as a Service (“SaaS”) Subscription Agreement (“Agreement”), is made and entered into this
(“Effective Date”), by and between PointerTop, Inc., dba WebToq (“Licensor”) with its principal address at 15333 N Pima Rd, Ste 305, Scottsdale, AZ 85260 and
(“Licensee”) with its principal address as provided in the signature block of this Agreement. Each Licensor and Licensee may be referred to in this Agreement in- dividually as a “Party” or collectively as “Parties.” Capitalized terms used herein and not otherwise defined have the meaning set forth in Section 1, Definitions.
Licensor is in the business of providing software for the support and sale of services and products by Licensee. The Parties desire that Licensor make such software available to Licensee under the terms and conditions of this Agreement.
In consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
As used in this Agreement and in an applicable order form for SaaS, the following terms shall have the following meaning:
“Agreement” means all of the terms and conditions contained herein, any update hereto, end user li- cense agreement, and exhibits specifically incorporated by reference herein.
“Content” means the audio and visual information, documents, materials, products, and services owned by Licensee and inserted into software and made available to Licensee while using the SaaS.
“Confidential Information” means confidential, trade secret, and proprietary information of the dis- closing party, including any nonpublic information relating to technologies, products, promotional and marketing activities, finances and financial plans, business plans, analyses, models, key personnel and contacts, business targets, strategies and objectives, capabilities, business affairs, and any third party information that the disclosing party is otherwise obligated to keep confidential, and that should reasonably have been understood by the receiving party, because of legends or other markings; the circumstances of disclosure or access; or the nature of the information, regardless of form (including but not limited to tangible or intangible, written, oral, or visual). Except as otherwise specified, Confidential Information includes this Agreement, and all of its terms and conditions.
“Customer” means a residential and/or business customer, actual or potential for Licensee-provided services or products, belonging to Licensee and serviced using SaaS.
“Customer Data” means any information entered into the SaaS related to a Customer.
“Effective Date” means the earlier of either the date first set forth above or the date Licensee begins using the SaaS.
“Intellectual Property Rights” means any unpatented inventions, patent applications, patents, design
rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“License Administrator(s)” means the User or Users designated by Licensee who are authorized to administer Licensee’s use of the SaaS.
“License Term(s)” means the period(s) during which Licensee is licensed to use the SaaS.
“Licensee Data” means any of the Licensee’s business information related to Licensee’s use of the SaaS, excluding Customer Data.
“Licensor Technology” means all of Licensor’s proprietary technology (including software, hard- ware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tan- gible or intangible technical material or information) made available to Licensee by Licensor in providing the SaaS.
“SaaS” means online or offline products and services provided to Licensee by Licensor, to which Licensee is being granted use and access under this Agreement and as provided in WebToq’s Price Lists sent separately
“User(s)” means Licensee employees, representatives, consultants, contractors, or agents who are au- thorized to use the SaaS and have been supplied user identifications and passwords by Licensee (or by Licensor at Licensee’s request).
2. License Grant and Restrictions
Licensor hereby grants Licensee a nonexclusive, nontransferable right to use the SaaS, solely for Licensee’s own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to Licensee are reserved by Licensor.
Licensee represents that it is not a competitor of Licensor and not accessing the SaaS for the purposes of directly or indirectly competing with Licensor or the SaaS. In addition, Licensee represents that it is not accessing the SaaS for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Licensee shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the SaaS in any way; (ii) modify or make derivative works based upon the SaaS; (iii) create Internet “links” to the SaaS or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the SaaS in order to (a) build a competitive product or SaaS, (b) build a product using similar ideas, features, functions or graphics of the SaaS, or (c) copy any ideas, features, functions or graphics of the SaaS. Licensee license cannot be shared or used by more than Licensee.
Licensee may use the SaaS only for Licensee’s internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the SaaS or the data contained therein; or (v) attempt to gain unauthorized access to the SaaS or its related systems or networks.
3. Licensee Responsibilities
Licensee is responsible for all activity occurring under Licensee’s license, including all activity of each User. Licensee and its Users shall abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with Licensee’s use of the SaaS, including those related to data privacy, Telephone Consumer Protection Act, international communications, marketing, and the transmission of technical or personal data. Licensee shall comply with all other agreements signed with Licensor while using the SaaS, including but not limited to security and marketing requirements. Licensee shall: (i) notify Licensor immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Licensor immediately and use rea- sonable efforts to stop immediately any copying or distribution of the SaaS that is known or suspected by Licensee or its Users; and (iii) not impersonate another user or provide false identity information to gain access to or use the SaaS.
4. Account Information and Data
Licensee acknowledges that Licensor owns all right, title, and interest in the SaaS including Intellectual Property Rights in the SaaS and Licensee Data. Licensee therefore agrees Licensee is only permitted to use the SaaS and the database as expressly authorized by the SaaS and this Agreement. Licensee, not Licensor, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and use of all Licensee Data and Customer Data. Licensor shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Licensee Data or Customer Data. In the event this Agreement is terminated, and Licensee is in good standing at termination. Licensor will make available to Licensee all stored Data only provided Licensee requests the Licensee Data within thirty (30) days of termination. If no request is made within thirty (30) days of termination, Licensor has no obligation to maintain or forward any Licensee Data. Licensor reserves the right to withhold, remove, and/or discard Licensee Data without notice for any breach, including, without limitation, Licensee’s non-payment. Upon termination, Licensee’s right to access or use the SaaS, Customer Data, and Licensee Data immediately ceases.
5. Export Restrictions
Licensee shall not, without express written permission from an authorized representative of Licensor, export Licensee Data and Customer Data outside of the country of origin.
Licensor reserves the right to modify or discontinue the SaaS with or without notice to Licensee. Licensor shall not be liable to Licensee or any third party should Licensor exercise its right to modify or discontinue the SaaS.
7. Technical Requirements
Licensee is responsible for obtaining and, as applicable, installing, configuring and updating a computer, hand-held device, operating system, web-browsing software, Internet service and connection and such other equipment, software and services as may be necessary for Licensee to access the SaaS. Licensor makes no warranties that Licensee’s equipment or third-party software is or will continue to be compatible with the use of the SaaS.
8. Intellectual Property Ownership
Licensor (and its licensors, where applicable) shall exclusively own all right, title, and interest, including all related Intellectual Property Rights, in and to the Licensor Technology, the SaaS, and any suggestions, ideas, enhancement requests, feedback,
recommendations, or other information provided by Licensee or any other party relating to the SaaS. This Agreement is not a sale and does not convey to Licensee any rights of ownership or Intellectual Property Rights in or related to the SaaS, the Licensor Technology, and/or Licensor Data owned by Licensor. Licensor’s name, Licensor’s logo, and the product names associated with the SaaS are trademarks of Licensor or third parties, and no right or license is granted to use them.
9. Charges and Payment of Fees
Licensee shall pay all fees or charges to Licensee’s account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. All fees and charges are listed in the WebToq Price List sent separately. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Licensee must provide authorized payment information as required by Licensor as a condition to signing up for the SaaS. A License Administrator may request to change its SaaS service in writing, which Licensor in its sole discretion may accept or reject. Li- censor reserves the right to modify its fees and charges and to introduce new charges, upon at least thirty (30) days prior notice to Licensee, which notice may be provided by email. All pricing terms are Confidential Information, and Licensee warrants and represents it shall not disclose them to any third party.
10. Billing and Renewal
Fees for other services will be charged on an as-quoted basis. Licensor’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Licensee shall be responsible for payment of all such taxes, levies, or duties, excluding only U.S. (federal or state) taxes based solely on Licensor’s income.
Licensee agrees to provide Licensor with complete and accurate billing and contact information. This information includes Licensee’s legal company name, street address, email address, and name and telephone number of an authorized billing contact and License Administrator. Licensee agrees to update this information within thirty (30) days of any change to it. If the contact information Licensee has provided is false or fraudulent, Licensor reserves the right to terminate Licensee’s access to the SaaS in addition to any other legal remedies.
If Licensee believes its bill is incorrect, Licensee must contact Licensor in writing within sixty
(60) days of the invoice date and provide whatever information is requested by the Licensor as a con- dition to be eligible to receive an adjustment or credit. Licensor will review the request and resolve it in its sole discretion.
11. Nonpayment and Suspension
In addition to any other rights granted to Licensor herein, Licensor reserves the right to suspend or terminate this Agreement and Licensee’s access to the SaaS for the following: (i) if Licensee does not pay its account when due, (ii) if noncompliant with this Agreement, (iii) if requested by a third-party provider, or (iv) any violation or lack of compliance by the Licensee in any other agreement between the Licensor and Licensee. Delinquent invoices and accounts are subject to interest of 1% percent per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Licensee will continue to be charged during any period of suspension. If Licensee or Licensor initiates termination of this Agreement, Licensee will be obligated to pay the balance due on Licensee’s account. Licensee agrees that Licensor may bill Licensee for such unpaid fees.
Licensor reserves the right to impose a reconnection fee in the event Licensee is suspended and thereafter request access to the SaaS. Licensee agrees and acknowledges that Licensor has no obligation to retain Licensee Data and that such Licensee Data may be irretrievably deleted if Licensee’s account past due.
12. Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. The License Term commences on the date Licensee agrees to pay for the SaaS by completing the subscription form.
Upon the expiration of a License Term, this Agreement will automatically renew for a successive License Term at Licensor’s then current Fee Schedule. Either Party may terminate this Agreement, effective only upon the expiration of the then current License Term, by notifying the other Party in writing at least thirty (30) days prior to the expiration of the License Term.
13. Termination for Cause
Any breach of Licensee’s payment obligations or unauthorized use of the Licensor Technology or SaaS will be deemed a material breach of this Agreement. Licensor, in its sole discretion, may terminate Licensee’s password, account or use of the SaaS if Licensee breaches or otherwise fails to comply with this Agreement. In addition, Licensor may terminate a Licensor provided account at any time in its sole discretion. Licensee agrees and acknowledges that Licensor has no obligation to retain the Licensee Data, and may delete such Licensee Data, if Licensee has materially breached this Agreement.
14. Representations and Warranties
Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. Licensee represents and warrants that Licensee has not falsely identified Licensee nor provided any false information to gain access to the SaaS and that Licensee’s billing information is correct.
Licensee must defend and indemnify Licensor and its affiliates, parents, subsidiaries, and all of their employees and agents from all liability, damages, punitive damages, fines, expenses, including reasonable attorneys’ fees and disbursements, claims, demands, or suits arising from any breach of this Agreement or non-compliance with law, the negligent, willful, or fraudulent acts, or for the failure to act, with respect to the performance of its obligations under this Agreement, including without limitation, any allegedly unauthorized use of a trademark, patent, copyright, process, method, or device, false or misleading advertising, or bodily injury, death, or damage to property to the extent occasioned by the acts or omissions of Licensee or its Users. Prompt written notice must be provided to Licensee of any claim for indemnity. Each Party may conduct its own defense of any claim in which it is named as a defendant without diminishing its indemnity rights. This indemnity provision only applies to claims or liability from third parties and not to claims between the Parties. The Limitation of Liability provisions of this Agreement do not limit recovery under this Indemnity clause for Licensor.
16. Disclaimer of Warranties
LICENSOR MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCU- RACY, OR COMPLETENESS OF THE SAAS. LICENSOR AND ITS LICENSORS DO NOT REP- RESENT OR WARRANT THAT (A) THE USE OF THE SAAS WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (B) THE SAAS WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY LICENSEE THROUGH THE SAAS WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE SAAS OR THE SERVER(S) THAT MAKE THE SAAS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SAAS IS PROVIDED TO LICENSEE STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MER- CHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY LICENSOR. ADDITIONALLY, LICENSOR DOES NOT GIVE PROFESSIONAL ADVICE. LICENSOR IS NOT IN THE BUSINESS OF PROVIDING LEGAL, FINANCIAL, ACCOUNTING, TAX, HEALTH CARE, REAL ESTATE, OR OTHER PROFESSIONAL SERVICES OR ADVICE.
17. Internet Delays
LICENSOR’S SAAS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LICENSOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
18. Limitation of Liability
IN NO EVENT SHALL LICENSOR’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL LICENSOR BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SAAS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SAAS, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SAAS, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE LICENSOR HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Licensor may give notice by means of a general notice on the SaaS, email to Licensee address on record in Licensor’s account information, or by written communication sent by first class mail or pre- paid post to Licensee address on record in Licensor’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Licensee may give notice to Licensor (such notice shall be deemed given when received by Licensor) at any time by any of the following; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Licensor at the following address: Pointertop, Inc. ATTN: Account Services, 15333 N Pima Rd, Suite 305, Scottsdale, AZ 85260
20. Modification to Terms
Licensor reserves the right to modify the terms and conditions of this Agreement or its policies,
which are hereby incorporated by reference, relating to the SaaS at any time, effective upon posting of an updated version of this Agreement on the SaaS. Licensee is responsible for regularly reviewing this Agreement. Continued use of the SaaS after any such changes shall constitute Licensee’s consent to such changes.
21. Assignment; Change in Control
This Agreement may not be assigned by Licensee without the prior written approval of Licensor but may be assigned without Licensee’s consent by Licensor to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Licensee that results or would result in a competitor of Licensor directly or indirectly owning or controlling 50 percent or more of Licensee shall entitle Licensor to terminate this Agreement for cause immediately upon written notice.
This Agreement shall be governed by Arizona law and controlling U.S. federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the SaaS shall be subject to the exclusive jurisdiction of the state and federal courts located in Maricopa County, Arizona.
No text or information set forth on any purchase order, preprinted form, or document shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Licensee and Licensor as a result of this Agreement or use of the SaaS. The failure of Licensor to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Licensor in writing. This Agreement, together with any applicable order form, comprises the entire agreement between Licensee and Licensor and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter contained herein.