MASTER SAAS/SERVICE AGREEMENT
“Affiliate” means a company which is controlled, under common control or controlling Customer during the period of such control. For the purposes of this Agreement, “control” means ownership, directly or indirectly, of more than 50% of the voting securities.
“Beta Services” means services or functionality that may be made available by Smart to Customer to evaluate at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or a similar description.
“Critical Control Software” means modules that report the number of authorized Users and permit Smart the ability to monitor certain usage of the Subscription Services.
“Customer Data” means any data, information or material submitted by Customer.
“Documentation” means Smart’s electronic and hardcopy user guides, help and training materials, and other documentation for the Subscription Services, which may be updated by Smart from time to time.
“Intellectual Property Rights” means any patents and applications therefor, copyrights, trademarks, domain name rights, trade secret rights and all other intellectual property rights.
“Law” means any local, state, national, administrative and/or foreign laws, treaties, regulations and/or orders applicable to a respective party.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
“Order Form” means an ordering document or signed proposal for the purchase of Services hereunder entered into between Smart or Smart reseller and Customer from time to time. Order Forms are deemed incorporated herein by reference.
“Professional Services” means the professional services described in the applicable Order Form provided by Smart or Smart reseller.
“Services” means, collectively, the Subscription Services and, if applicable, the Professional Services.
“Subscription Services” means the Web-based platform provided by Smart under an Order Form.
“SLA” means the Support and Services Level Availability Policy attached as Exhibit A, which may be updated by Smart from time to time subject to the warranty in Section 6.1(ii) which prohibits a material decrease in functionality, which will be construed for the SLA as prohibiting a material decrease in uptime commitments, security, or reliability of the backup and restoration process.
“Subscription Fees” means the fees for the Subscription Services ordered by Customer pursuant to an Order Form.
“Taxes” means any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including VAT, GST, excise, sales, use or withholding taxes.
“User” means an employee, contractor or agent of Customer and its Affiliates authorized by Customer to use the Services on behalf of Customer.
2. The Subscription Services.
2.1. Provision of the Services. Smart shall: (i) make the Subscription Services available to Customer pursuant to the terms of this Agreement and the applicable Order Form during the applicable Subscription Term; (ii) provide standard support for the Subscription Services at no additional charge, and/or upgraded support if purchased.
2.2. Beta Services. From time to time, Smart may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or not in Customer’s sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are provided “AS IS” (without any representations, warranties or indemnities) and not considered “Services” under this Agreement, however, all restrictions, Smart reservation of rights and Customer obligations concerning the Services, and use of any related Third-Party Software, shall apply equally to Customer’s use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. Smart may discontinue Beta Services at any time in Smart’s sole discretion and may never make them generally available. Smart will have no liability for any harm or damage arising out of or in connection with a Beta Service.
2.3. Federal Government End Use Provisions (if applicable). Smart provides the Subscription Services, including related software and technology, for federal government end use solely in accordance with the following: Government technical data and software rights related to the Subscription Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202.3 (Rights in Commercial Computer Software or Computer Software Documentation).
Invoice and payment, taxes, billing disputes, and renewal terms and fees are specified in your Epicor order forms and agreements.
4. Proprietary Rights.
4.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Smart and its licensors reserve all of its/their right, title and interest in and to the Services, including all of its/their related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
4.2. Grant of Rights. Smart hereby grants Customer a worldwide (subject to export regulations), non-exclusive, non-transferable (except as set forth in Section 10.5), right to use the Services and Documentation, solely for the internal business purposes of Customer and Affiliates and solely during the applicable Subscription Term, subject to the terms and conditions of this Agreement.
4.3. Customer Obligations; Grant Restrictions. Customer shall not: (i) modify, copy or create any derivative works based on the Services or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau or otherwise make the Services or Documentation available to any third party, other than to Users as permitted herein; (iii) reverse engineer or decompile any portion of the Services or Documentation, including but not limited to, any software utilized by Smart in the provision of the Services and Documentation, except to the extent required by Law; (iv) access the Services or Documentation in order to build any competitive or commercially available product or service or for purposes of monitoring the availability, performance or functionality of the Services, or for any other benchmarking or competitive purposes; (v) copy any features, functions, integrations, interfaces or graphics of the Service or Documentation; (vi) use the Services in violation of Laws or outside the scope of the rights granted in Section 4.2; (vii) in connection with the Services, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (viii) send or store Malicious Code in connection with the Services; (ix) interfere with or disrupt performance of the Services or the data contained therein; or (x) attempt to gain access to the Services or its related systems or networks in a manner not set forth in the Documentation. Customer shall: (a) have sole responsibility for the accuracy, quality and legality of all Customer Data; and (b) prevent unauthorized access to, or use of, the Services, and notify Smart promptly of any such unauthorized access or use. Customer shall be responsible and liable for the acts and omissions of all Users and Affiliates relating to this Agreement.
4.4. Ownership and Use of Customer Data. Customer owns all right, title and interest in and to all its Customer Data. Subject to the terms of this Agreement, Customer grants Smart and its Affiliates a worldwide (subject to export regulations), limited, non-exclusive, non-transferable (except as set forth in Section 10.5) right to (i) use, copy, transmit and display Customer Data to provide Customer the Services, (ii) prevent or address service or technical problems and/or maintain the Critical Control Software, (iii) de-identify and aggregate Customer Data to analyze and report system metrics and other statistical data and (iv) enforce the rights of the parties under the Agreement and Order Form(s). Customer reserves all rights in Customer Data not expressly granted to Smart.
4.5. Use of Customer Input. Customer grants Smart a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Smart’s products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or the Users relating to the Services.
5.1. Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information includes Customer Data; Smart Confidential Information includes the Services and Documentation; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party or (iv) was independently developed by the Receiving Party. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, advisors and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections, or have ethical duties to the Receiving Party, not materially less protective of the Confidential Information than those herein. Each party may confidentially disclose the terms of this Agreement and any Order Form to any actual or potential financing source or acquirer. Notwithstanding the foregoing, Smart may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Third Party Software provider to the extent necessary to perform Smart’s obligations to Customer under this Agreement, under terms of confidentiality materially as protective as set forth herein.
5.2. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by Law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
5.3. System Security. If Smart will be given access to Customer’s computer system(s) or software (“IT System”) in connection with performance of the Services, Smart shall comply with IT System security policies and will not tamper with, compromise or circumvent any security or audit measures employed by Customer.
6. Representations, Warranties, Exclusive Remedies and Disclaimers.
(a) Each party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all Laws applicable to it related to data privacy, international communications and the transmission of technical or personal data.
(b) Smart warrants that during the applicable Subscription Term (i) the Subscription Service shall perform materially in accordance with the Documentation; (ii) the functionality of the Subscription Service will not be materially decreased during the applicable Subscription Term; and (iii) it will use commercially reasonable efforts to prevent the introduction of Malicious Code into Customer’s systems (except for any Malicious Code submitted by Customer or its Users to the Service).
(c) Smart represents, warrants and covenants that: (i) it has and will have all rights, titles, licenses, intellectual property, permissions and approvals necessary in connection with its performance under this Agreement and to grant Customer the rights granted hereunder, and (ii) neither the Services nor the provision or utilization thereof as contemplated under this Agreement, do or will infringe, violate, trespass or in any manner contravene or breach or constitute the unauthorized use or misappropriation of any intellectual property of any third party. This non-infringement warranty is not subject to a warranty period and shall survive termination or expiration of this Agreement.
6.2. Exclusive Remedies. As Customer’s exclusive remedy and Smart’s sole liability for breach of the warranties set forth in Section 6.1 (b)(i) and (ii), (i) Smart shall correct the non-conforming Subscription Service at no additional charge to Customer or (ii) in the event Smart is unable to correct such deficiencies after good-faith efforts, Smart shall refund Customer amounts paid that are attributable to the defective Subscription Service from the date Smart received such notice. To receive warranty remedies, Customer must promptly report deficiencies in writing to Smart, but no later than sixty (60) days of the first date the deficiency is identified by Customer.
6.3. DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD PARTY HOSTING PROVIDERS. SMART DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED.
7. Mutual Indemnification.
7.1. Indemnification by Smart. Smart shall defend Customer, its officers, directors, employees and contractors harmless against any third party claims, demands, suits, or proceedings (“Claims”) against Customer alleging that the use of the Subscription Service as contemplated hereunder infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party, and shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such Claim; provided, however, that Customer: (i) promptly gives written notice of the Claim to Smart; (ii) gives Smart sole control of the defense and settlement of the Claim (provided that Smart may not settle any Claim unless it unconditionally releases Customer of all liability); and (iii) provides to Smart, at Smart’s cost, all reasonable assistance. Smart shall not be required to indemnify Customer in the event of: (a) modification of the Subscription Service by Customer, its employees or Users in conflict with Customer’s obligations or as a result of any prohibited activity as set forth herein; (b) use of the Subscription Service in an unauthorized manner or any manner inconsistent with the Documentation; or (c) use of the Subscription Service in combination with any other product or service not provided by Smart. If Customer is enjoined from using the Subscription Service or Smart reasonably believes a Claim may be forthcoming, Smart shall have the right, at its sole option, to obtain for Customer the right to continue use of the Subscription Service or to replace or modify the Subscription Service so that it is no longer infringing. If neither of the foregoing options is reasonably available to Smart, then this Agreement may be terminated at the option of Smart and Smart’s sole liability shall be to provide a pro rata refund of any prepaid fees for the Subscription Service that was to be provided after the effective date of termination.
7.2. Indemnification by Customer. Customer shall defend Smart, its officers, directors, employees and contractors harmless from any Claims against Smart alleging that the Customer Data infringes the rights of, or has caused harm to, a third party or violates any Law, and shall pay all costs and damages finally awarded against Smart by a court of competent jurisdiction as a result of any such Claim; provided, however, that Smart: (i) promptly gives written notice of the Claim to Customer; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Smart of all liability); and (iii) provides to Customer, at Customer’s cost, all reasonable assistance.
8. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS AND/OR CUSTOMER’S BREACH OF SECTION 4.3 OR PAYMENT OBLIGATIONS, IN NO EVENT SHALL (A) EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, OR (B) EITHER PARTY’S (OR SMART’S THIRD PARTY LICENSORS’) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE SUBCRIPTINO SERVICE FROM WHICH THE CLAIM AROSE.
9. Term and Termination.
Term of Agreement, Termination, Effect of Termination, are specified in your Epicor agreement
10. General Provisions.
10.1. Export Compliance. The Services, Documentation and other technology Smart makes available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any Service or Documentation in a U.S. embargoed country or in violation of any U.S. export law or regulation.
10.2. Employee Solicitation. Each party undertakes that during the Term and for a period of six (6) months after expiry of the Term it shall not specifically solicit or endeavour to entice away employees of the other party. However, the foregoing shall not be construed as limiting or restricting either party from hiring any employees of the other party who respond to a general solicitation for employment by the party, provided that such solicitation is not intentionally targeted at or prepared with a view to specifically attracting employees of the other party.
10.3. Publicity. Smart may utilize customer name and logo in customer lists on www.smartcorp.com/customers. Neither party may issue any advertising, sales promotion, press releases and other publicity relating to this Agreement or the Services performed hereunder without the other party’s prior written consent. Upon termination of this Agreement, Smart will immediately discontinue all uses of Customer’s name, logo and any other intellectual property of Customer.
10.4. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Customer and Smart regarding Customer’s use of Services and Documentation and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by the parties. The terms and conditions of this Agreement shall supersede and replace any pre-printed terms, conditions or material on the face or reverse of any Customer purchase order. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (i) the applicable Order Form; (ii) this Agreement; and (iii) the Documentation.
10.5. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld, conditioned or delayed); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets . Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Smart will refund to Customer any prepaid fees for Subscription Services allocable to the remainder of the then-current Subscription Term for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.6. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries under this Agreement.
10.7. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees), material curtailment, degradation or interruption of telecommunications and internet service resulting in Smart’s inability to provide the Services, and denial of service attacks.
10.8. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right or any other right. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion. Except as otherwise expressly stated in this Agreement, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.9. Governing Law; Venue. This Agreement and any claim, controversy, right, obligation or dispute arising under or related to this Agreement or any Order Form shall be governed by and construed in accordance with the laws of the State of Massachusetts, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
10.10. Notices. Unless otherwise provided in this Agreement, all notices (except for routine business communications, e.g., renewal notices and information, maintenance windows) shall be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Smart shall be addressed to the Chief Financial Officer, with a copy to the Chief Executive Officer, at Smart’s principal place of business set forth above in the first paragraph of this Agreement. Notices to Customer shall be addressed to at its principal place of business set forth above in the first paragraph of this Agreement.
10.11. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
Support and Service Level Availability
Service Availability Commitment. During the Term of this Agreement, the Services will be available no less than 99.5% of the total number of minutes within a calendar month (the “Monthly System Availability Commitment”). The achievement of System Availability Commitment excludes the following: (i) any scheduled maintenance, including without limitation scheduled maintenance communicated to Customer in writing at least four (4) business days in advance; (ii) any unavailability due to any force majeure event as set forth in the Agreement; (iii) any problem resulting from Customer using the Services in conjunction with any hardware or software not provided by Smart; (iv) any interruption or unavailability resulting from Customer’s use of the Services in an improper, unauthorized or unlawful manner; (vi) any problem resulting from Customer’s or any third party’s acts, errors or omissions or any software and/or systems not provided by Smart; and (vii) any interruption resulting from disconnection or suspension of the Services for nonpayment in accordance with Section 3.4 of the Agreement. Smart will track compliance with the Monthly System Availability Commitment on a monthly basis and will provide Customer with a report on request.
Scheduled Maintenance, Unscheduled Maintenance, and Background Jobs. Smart may have weekly or bi-weekly scheduled maintenance period on Saturdays between 6 AM ET to noon ET to perform system maintenance, backup, and upgrade functions for the Services. If scheduled maintenance is required outside of this maintenance period, Smart will notify Customer at least four (4) business days in advance. In addition, the SIO application will be unavailable during period beginning background task computation jobs. These computation jobs are typically scheduled once monthly or weekly outside of normal business hours and can take several hours to complete. In the event unscheduled maintenance may be required to resolve issues that are critical for performance of the Services, Smart will notify Customer as soon as practicable under the circumstances regarding any unscheduled maintenance. All scheduled and unscheduled maintenance notifications are logged and communicated to Customer electronically in writing via the Services.
System Availability Credit. Any request for a credit must be made in writing by the Customer. Smart shall issue a credit to Customer for failure to meet the Monthly System Availability Commitment within thirty (30) days following receipt of written request. The credit is 10% of the Subscription Fee divided by twelve (12) for the month of the failure (the “System Availability Credit”).
Support. During the entire Term of this Agreement, Smart personnel will provide no-charge email, telephone, and web-conference based support for critical and how to issues regarding user operation. To initiate a support request, and email must be sent to our support ticket system at email@example.com. Telephone calls may be placed to 617-489-2743 or toll free at 800-SMART-99. Our customer support portal is: support.smartcorp.com. Users may visit the portal to enter a ticket, search for answers in our knowledge base, or enter feature requests.
Software enhancements, upgrades, and fixes are provided during scheduled downtime for no additional charge and are automatically deployed. Two weeks prior to releasing an upgrade, Smart Software will provide a parallel environment containing the to be upgraded version to allow users to familiarize themselves with the new version before release. Once the upgrade is deployed to your production system, the parallel environment will be disabled until two weeks prior to the next upgrade.
Phone and web-conference support will be provided during the hours of 9:00 am to 5:00 pm ET from Monday through Friday excluding United States holidays. All submitted support requests will be followed up by a support personnel response within 4 hours during normal business hours. However, Smart will use commercially reasonable efforts to respond to support requests immediately. All efforts will be made to respond quickly during off hours but no response is guaranteed until the next business day.