These Terms and Conditions, together with the Subscription Order Form(s) entered into by Supplyframe Inc. ("Supplyframe") and the entity listed as the "Licensee" in the Subscription Order Form are collectively referred to as the "Agreement". This Agreement is entered into as of the Effective Date set forth on the Subscription Order Form and governs the relationship between the parties with respect to Licensee's use of the Quotefx SaaS Offering ordered pursuant to the Subscription Order Form. Capitalized terms used but not defined herein shall have the meanings accorded to them in the Subscription Order Form.
IMPORTANT: BY LICENSEE OR ANY OF ITS USERS ACCESSING AND/OR USING THE QUOTEFX SAAS OFFERING ("SAAS OFFERING") IN ANY WAY, LICENSEE IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS A PARTY TO THIS AGREEMENT WITH SUPPLYFRAME. SUPPLYFRAME DOES NOT AGREE TO ANY OTHER TERMS, INCLUDING WITHOUT LIMITATION ANY TERMS ON LICENSEE'S INVOICE.
1. Grant of Subscription License.
A. License. Subject to the terms and conditions of this Agreement, Supplyframe hereby grants to Licensee a personal, nontransferable, nonexclusive, end-user subscription license, to remotely access and use the SaaS Offering solely for Licensee's own internal operations and solely by the number of Named Users (defined below) designated on the SaaS Subscription Order Form (the "License"). The user systems manuals and documentation relating to the SaaS Offering are collectively referred to as the "Documentation". The "Named Users" shall mean the permitted number of individual users specified on the Subscription Order Form. Licensee may designate different individuals to be the Named Users at any time without notice to Supplyframe so long as the permitted number of Named Users as set forth in the Subscription Order Form is not exceeded. Unless otherwise specifically provided in the Subscription Order Form, Named Users may include only employees of Licensee. Except as expressly granted in this Agreement, Licensee shall have no other rights in or to the SaaS Offering or any components thereof. The SaaS Offering is provided as a service and no licenses are granted to the underlying software. Supplyframe reserves all rights and licenses to the SaaS Offering and Documentation not expressly granted to Licensee under this Agreement.
B. Usernames and Passwords. Supplyframe will provide each Named User a unique username and password to enable such Named User to access the SaaS Offering pursuant to this Agreement. Supplyframe reserves the right to change or update these username and passwords in Supplyframe's sole discretion from time to time. Licensee acknowledges and agrees that only Named Users are entitled to access the SaaS Offering with the username and password provided to Licensee. Licensee will provide to Supplyframe information and other assistance as necessary to enable Supplyframe to establish usernames for Named Users, and Licensee will verify all Named User requests for account passwords. Licensee will ensure that each username and password issued to a Named User will be used only by that Named User. Licensee is responsible for maintaining the confidentiality of all Named Users" usernames and passwords, and is solely responsible for all activities that occur under these usernames. Licensee agrees (a) not to allow a third party to use its account, usernames or passwords at any time; and (b) to notify Supplyframe promptly of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of this Agreement. Supplyframe reserves the right to suspend or terminate any username and password, which Supplyframe reasonably determines may have been used by an unauthorized third party or by any Named User or individual other than the Named User to whom such username and password was originally assigned.
C. Restrictions. The Named Users shall use the SaaS Offering solely to perform the functions described in the Documentation to support Licensee's own internal operations, in accordance with the access requirements specified by Supplyframe from time to time during the Term of this Agreement. Licensee shall not:
(i) permit any party to access and/or use the SaaS Offering, other than the Named Users authorized under this Agreement;
(ii) interfere with, disrupt, alter, translate, or modify the SaaS Offering, or any part thereof, or create an undue burden on the SaaS Offering or the networks or services connected to the SaaS Offering;
(iii) without Supplyframe's express written permission, introduce software or automated agents or scripts to the SaaS Offering so as to produce multiple accounts, generate automated searches, requests, and queries, or to strip or mine data from the SaaS Offering;
(iv) perform or publish any performance or benchmark tests or analyses relating to the SaaS Offering or the use thereof;
(v) decompile, disassemble or otherwise reverse engineer the SaaS Offering (or its underlying software), or otherwise apply any procedure or process to the SaaS Offering in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the underlying software or any algorithm, process, procedure, trade secret information, or other Confidential Information (as defined herein) contained in the SaaS Offering;
(vi) rent, lease, loan, or sell access to or use of the SaaS Offering or use the SaaS Offering for providing services to any third party; or
(vii) cover or obscure any page or part of the SaaS Offering via HTML/CSS, scripting, or any other means, if any.
D. Term and Termination. This Agreement shall commence on the Effective Date and continue in full force and effect for the duration of the Term set forth on the SaaS Subscription Order Form, unless earlier terminated as set forth in this Section 1.D. Pursuant to the SaaS Subscription Order Form, following expiration of the Initial Term, this Agreement will automatically be renewed for successive thirty (30) day periods at the charges and under the terms and conditions in effect at the time of the renewal unless and until either party provides the other party with written notice of its intent not to renew this Agreement within sixty (60) days of the end of the Initial Term or the then-current Renewal Period, as applicable, or as otherwise may be terminated in accordance with the provisions of this Section 1.D. Supplyframe shall have the right to terminate this Agreement, which will automatically terminate the License granted herein: (a) upon thirty (30) days written notice in the event that Licensee breaches or otherwise violates any provision of this Agreement; or (b) upon ten (10) days written notice in the event Licensee (i) terminates, suspends, liquidates or winds down its business, or (ii) becomes insolvent or subject to any bankruptcy or insolvency proceeding under Federal or State statute or law. Promptly after expiration or termination of this Agreement, Supplyframe will terminate Licensee's access to the SaaS Offering. Termination of the Agreement for any reason will automatically result in termination of the License and shall not relieve Licensee of its obligations regarding confidentiality of the SaaS Offering, Documentation and Confidential Information. In addition, the following Sections shall survive any expiration or termination of this Agreement: 4, 5, 6, 7, and 8.
During the Term of this Agreement, subject to the terms and conditions of this Agreement, and provided all Named User Licenses are covered by a current Subscription Order Form, Supplyframe will provide the following services (the "Services") to Licensee:
A. Support for Named Users of SaaS Offering. Supplyframe will provide telephone and e-mail assistance to answer Licensee's routine questions and otherwise assist Licensee in the normal use of the SaaS Offering. Hotline assistance is available Monday through Friday, 6:00 a.m. to 5:00 p.m. Pacific Standard Time, excluding Supplyframe observed holidays.
B. Service Levels. Supplyframe will use reasonable commercial efforts to provide the SaaS Offering in accordance with the service levels set forth in Exhibit A (Service Levels).
A. License Fees. In consideration for the License granted herein, Licensee shall pay license fees ("License Fees") to Supplyframe in the amount(s) and on the terms set forth in the SaaS Subscription Order Form, which License Fees shall be increased at the one (1) year anniversary date from the Effective Date and each one (1) year anniversary thereafter, if any. Supplyframe will notify Licensee of the License Fees for the upcoming one (1) year anniversary within sixty (60) days prior to such anniversary. Unless otherwise provided in the SaaS Subscription Order Form, all License Fees are stated in U.S. dollars and shall be due upon execution of this Agreement, and each subsequent Term thereafter Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less. Supplyframe shall be entitled to withhold performance and discontinue service until all amounts due are paid in full.
B. Taxes. The License Fees are exclusive of, and Licensee shall pay, any and all taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes") that may be or become payable as a result of the transactions contemplated by this Agreement. If Supplyframe has the legal obligation to pay or collect Taxes for which Licensee is responsible under this Section, the appropriate amount shall be invoiced to and paid by Licensee within thirty (30) days of receipt thereof, unless Licensee provides Supplyframe with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Supplyframe is solely responsible for taxes assessable against it based on Supplyframe's income, property and employees.
4. Confidentiality and Proprietary Rights.
A. Ownership. Licensee acknowledges and agrees that Supplyframe retains sole and exclusive ownership of all worldwide rights, title, and interest in and to the SaaS Offering and the Documentation and any and all intellectual property rights therein, including: (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Licensee regarding the SaaS Offering. All rights not expressly granted to Licensee are hereby reserved by Supplyframe.
B. Licensee Content Subject to the terms and conditions of this Agreement, Licensee hereby grants to Supplyframe the right to use, access, collect, and store Licensee Content (as defined below) to (i) provide the SaaS Offering to Licensee; and (ii) improve the features and functionality of the SaaS Services, provided that Supplyframe will not disclose any Licensee Confidential Information to any third party in connection with such use. As a provider of the SaaS Offering, Supplyframe also collects and uses data and information in an anonymized and aggregated form relating to how the SaaS Offering is used by its customers (such as, but not limited to, search terms used or how customers perform searches) and transactions processed through the SaaS Offering for the purposes of data analytics. Supplyframe reserves the right to disclose to and share such information and data, and any reports or other materials derived therefrom, with third parties in an anonymous and aggregate form at its discretion. Licensee represents and warrants that any information, data, results, ideas, plans, sketches, texts, files, links, images, photos, video, sound, inventions (whether or not patentable), notes, works of authorship, articles, feedback, or other materials ("Content"), provided, imported or uploaded to or through the SaaS Offering by or on behalf of Licensee ("Licensee Content") shall not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes able to damage the SaaS Offering; or (e) otherwise violate the rights of a third party. In addition, Licensee represents and warrants that it shall keep and maintain its own copy of all Licensee Content that is provided to the SaaS Offering and Supplyframe. Supplyframe is not obligated to backup any Licensee Content that is posted on the SaaS Offering. Licensee is solely responsible for downloading and creating backup copies of any Licensee Content posted on the SaaS Offering at Licensee's sole cost and expense. Licensee agrees that any use of the SaaS Offering contrary to or in violation of the representations and warranties of the Licensee in this section constitutes improper and unauthorized use of the SaaS Offering.
(i) Confidential Information. Each party may from time to time during the Term disclose to the other party certain information regarding the disclosing party's business, including technical, marketing, financial, employee, customer, and other confidential or proprietary information ("Confidential Information"). Confidential Information includes any and all scientific or technical information, concepts, designs, processes, procedures, formulas, or improvements that are commercially valuable and secret (in the sense that, with respect to Supplyframe, the confidentiality of such items affords Supplyframe a competitive advantage over its competitors). At all times hereunder, the Confidential Information provided by the disclosing party to the receiving party shall remain the sole and exclusive property of the disclosing party. The provisions of this Agreement shall apply to Confidential Information received from and after the Effective Date of this Agreement.
(ii) Supplyframe Confidential Information. Licensee acknowledges and agrees that the SaaS Offering and the Documentation embody and contain Confidential Information which is commercially valuable and proprietary to Supplyframe, and which Confidential Information is treated by Supplyframe as confidential. Supplyframe has entrusted the Confidential Information to Licensee in confidence to use only as expressly authorized herein. Licensee agrees that it (i) shall not disclose, reveal or otherwise allow discovery of the Confidential Information except as permitted under the terms and conditions of this Agreement; (ii) shall not permit access to the SaaS Offering or the Documentation by anyone other than by authorized employees of Licensee requiring access in the course of employment by Licensee (or as otherwise permitted under this Agreement); and (iii) shall devote its best efforts to protect the SaaS Offering, the Documentation, and any other Supplyframe Confidential Information, against any unauthorized or unlawful use or copying, the same being no less than those practices and procedures under which Licensee protects its own Confidential Information. Licensee acknowledges that, in the event of Licensee's breach of any of the foregoing provisions, Supplyframe will not have an adequate remedy in money or damages. Supplyframe shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon such request. Supplyframe's right to obtain injunctive relief shall not limit its right to seek further remedies. The obligations undertaken by the parties in this Section 5C. shall survive the termination of this Agreement for any reason.
(iii) Licensee Confidential Information. Supplyframe agrees: (i) that Supplyframe shall devote its best efforts to protect Licensee's Confidential Information against any unauthorized or unlawful use or copying, the same being no less than those practices and procedures under which Supplyframe protects its own Confidential Information; and (ii) that Supplyframe shall not use or employ Licensee's Confidential Information for the benefit of any third party without the written consent of Licensee, which consent may be given or withheld by the Licensee in its sole discretion.
5. Disclaimer of Warranties.
THE SAAS OFFERING IS PROVIDED "AS-IS" AND AS AVAILABLE AND SUPPLYFRAME MAKES NO (AND DISCLAIMS ALL) PROMISES, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SAAS OFFERING (INCLUDING THE USE, MISUSE, OR INABILITY TO USE THE SAAS OFFERING, IN WHOLE OR IN PART), THE DOCUMENTATION, AND ANY DATA, INFORMATION, OR OTHER MATERIAL FURNISHED TO THE LICENSEE HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF SUCH ITEM OR ITEMS, DATA ACCURACY, TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, AND/OR QUIET ENJOYMENT, THE CONDITION OR THE CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION THEREOF, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS THEREIN, OR THE UNINTERRUPTED, SECURE OR ERROR-FREE USE OF THE SAAS OFFERING, OR THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SAAS OFFERING WILL BE EFFECTIVE, ACCURATE OR RELIABLE. LICENSEE IS SOLELY RESPONSIBLE FOR ITS USE OF THE SAAS OFFERING AND FOR THE ACCURACY OF INFORMATION GENERATED FROM ITS USE.
SUPPLYFRAME MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY THIRD PARTY CONTENT FOUND ON OR THROUGH THE SAAS OFFERING OR THAT IS OTHERWISE AVAILABLE USING THE SAAS OFFERING. LICENSEE REPRESENTS AND WARRANTS THAT ANY THIRD PARTY CONTENT THAT IT USES OR HAS ACCESS TO SHALL NOT (A) BE COPIED, ALTERED, OR REDISTRIBUTED BY LICENSEE WITHOUT THE PRIOR WRITTEN CONSENT OF THE OWNER OF SUCH THIRD PARTY CONTENT; OR (B) BE USED IN ANY DOCUMENTS, REPORTS, PRESENTATIONS OR PUBLICATIONS BY LICENSEE WITHOUT THE PRIOR WRITTEN CONSENT AND WITHOUT ATTRIBUTION TO THE OWNER AND/OR AUTHOR OF SUCH THIRD PARTY CONTENT OR TO ANY OTHER SOURCES OF SUCH THIRD PARTY CONTENT AS MAY BE APPROPRIATE.
6. Limitation of Liability, Exclusion of Damages.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT SHALL SUPPLYFRAME, ITS PARENTS, SUBSIDIARIES OR AFFILIATED ENTITIES, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, LOSS OF DATA, BUSINESS INFORMATION, DATA USE OR OTHER PECUNIARY LOSS, WHETHER ARISING IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF THE USE, MISUSE OR INABILITY TO USE THE SAAS OFFERING OR THE DOCUMENTATION, EVEN IF SUPPLYFRAME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, LICENSEE SPECIFICALLY AGREES THAT THE TOTAL CUMULATIVE LIABILITY OF SUPPLYFRAME ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY SHALL NOT EXCEED, AND LICENSEE SHALL NOT BE ENTITLED TO RECEIVE OR COLLECT DAMAGES FOR LIABILITY FROM SUPPLYFRAME IN EXCESS OF ANY LICENSE FEES PAID BY LICENSEE TO SUPPLYFRAME FOR THE ACCESS TO THE SAAS OFFERING DURING THE TWELVE (12) MONTH PERIOD DIRECTLY PRECEDING THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY.
A. Supplyframe's Indemnification.
(i) Supplyframe shall defend Licensee and pay damages awarded or settled in court arising out of or in connection with any third-party claims that the SaaS Offering infringes a United States registered copyright or patent, provided that: (a) Licensee gives Supplyframe prompt notice of the claim; (b) Supplyframe is given immediate and complete control over the defense and/or settlement of any such claim; (c) Licensee does not prejudice in any manner Supplyframe's conduct of such claim; and (d) the alleged infringement is not based upon the use of the SaaS Offering or Documentation in a manner not expressly authorized or otherwise prohibited by this Agreement, in a manner for which the SaaS Offering was not designed, or in a manner not in accordance with the Documentation.
(ii) Supplyframe shall have no liability for any claim of infringement based on any of the following: (a) the combination, operation or use of the SaaS Offering or Documentation with software, hardware or other materials not furnished by Supplyframe; (b) any alteration or modification of the SaaS Offering or Documentation not expressly authorized by Supplyframe; or (c) any use of the SaaS Offering by Licensee in a manner that would trigger Licensee's indemnification obligations under Section 8.G below. Further, if a final injunction is obtained against the use of any part of the SaaS Offering or Documentation by reason of infringement of a U.S. registered copyright or patent, Supplyframe will, at its option and expense, either use commercially reasonable efforts to secure the right to continue using the item; or use commercially reasonable efforts to replace or modify the item to make it non-infringing; or, if neither can be obtained on commercially reasonable terms and pricing, Supplyframe may terminate the License and refund to Licensee the portion of the prepaid License Fees applicable to that portion of the SaaS Offering or Documentation which is infringing. The foregoing states Supplyframe's entire obligation and liability with respect to the infringement of any property right.
B. Licensee's Indemnification. Licensee hereby indemnifies, defends and holds Supplyframe harmless against any claim for (i) alleged infringement of any U.S. registered copyright or patent, arising out of the use of the SaaS Offering or Documentation by Licensee in any manner not expressly authorized or otherwise prohibited by this Agreement, or in a manner for which the SaaS Offering was not designed, or in a manner not in accordance with the Documentation; and (ii) any claim brought by any third party based on Licensee's use of the SaaS Offering or Documentation, provided such claim is not otherwise covered by Supplyframe's indemnification in Section 7.A above.
A. Compliance with Laws. Licensee shall be solely responsible for its use of the SaaS Offering including ensuring that such use complies with all applicable laws, including, without limitation, data protection and privacy laws. Licensee understands that the SaaS Offering is not designed to achieve or contribute to Licensee's compliance with these or other laws or regulations of any jurisdiction.
B. Transfer or Assignment. This Agreement and all rights and obligations hereunder may not be transferred or assigned by Licensee unless (i) Licensee's proposed successor agrees in writing to all the terms and conditions of this Agreement; (ii) all Service, Support, license and Upgrade fees are current and paid in full to Supplyframe at the time of the transfer; (iii) Licensee obtains Supplyframe's prior written consent to such transfer, and (iv) after receiving Supplyframe's consent, Licensee transfers and assigns to the approved transferee all of Licensee's rights, interests, and obligations in, to, and under this Agreement, the SaaS Offering, and the Documentation. If the SaaS Offering is an update or has been updated, any transfer must include the most recent update and all prior versions. Supplyframe may freely transfer or assign this Agreement, and any and all rights and obligations hereunder.
C. Governing Law. This Agreement will be governed and interpreted in accordance with the internal laws of the State of California, USA, without giving effect to principles of conflicts of laws. Exclusive jurisdiction and venue for all disputes arising under this Agreement will be in the state and Federal courts residing in Los Angeles County, California. Each party expressly and irrevocably consents and submits to the exclusive jurisdiction of each state and Federal court located in Los Angeles County, California (and each appellate court located in the State of California) in connection with any proceeding; agrees that each state and Federal court located in Los Angeles, California shall be deemed to be a convenient forum; and agrees not to assert (by way of motion, as a defense or otherwise), in any such proceeding commenced in any state or Federal court located in Los Angeles, California, any claim that such party is not subject personally to the jurisdiction of such court, that such proceeding has been brought in an inconvenient forum, that the venue of such proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court.
D. Severability. If any portion of this Agreement is found to be invalid or unenforceable, the parties agree that the remaining portions shall remain in effect. The parties further agree that in the event such portion is an essential part of this Agreement, they will immediately begin negotiations for a replacement revision.
E. Effect of Headings. The Section headings in this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement.
F. Force Majeure. Neither party shall be under any liability for any loss or for any failure to perform any obligation hereunder due to causes beyond its control including without limitation industrial disputes of whatever nature, power loss, telecommunications failure, acts of God, or any other cause beyond its reasonable control.
G. Non-solicitation. Licensee shall not solicit the employment of nor employ any current or former Supplyframe personnel who has been directly involved in the development, sale, or support of the SaaS Offering or Documentation for a period of two (2) years from the later of the termination of such individual's employment at Supplyframe or the Effective Date.
H. Marketing. Licensee agrees to Supplyframe's publication of a press release and case study regarding the SaaS Offering and Services provided hereunder; provided that Supplyframe shall not publish any such press release, case study or make other non-incidental reference to Licensee without first submitting it to Licensee for review and approval, which approval shall not be unreasonably withheld or delayed. In addition, Licensee may from time to time agree in its reasonable discretion to participate in webinars hosted by Supplyframe and to take reference calls for Supplyframe.
I. Notice and Updates to the Terms and Conditions. Unless otherwise agreed to by the parties, any notice required or permitted to be given or delivered under this Agreement shall be delivered to the address and with attention to the person or office set forth on the Subscription Order Form. Notice shall be deemed to have been received by any party, and shall be effective (i) on the day given, if personally delivered or if sent by confirmed facsimile transmission or electronic mail (email), receipt verified, or (ii) on the third day after which such notice is deposited, if mailed by certified, first class, postage prepaid, return receipt requested mail. Notwithstanding anything contained in this Section 8.K, Licensee agrees that Supplyframe may notify Licensee of any updates to these Terms and Conditions by posting the updated Terms and Conditions at this URL, and that Licensee's use of the SaaS Offering after the effective date of the updated Terms and Conditions constitutes Licensee's agreement to the updated Terms and Conditions. The updated Terms and Conditions will be effective as of the time of posting, or such later date as may be specified in the updated Terms and Conditions, and will apply to Licensee's use of the Services from that point forward.
J. Waiver. Failure by either party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy.
K. Entire Agreement, Amendment. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior representations, proposals, discussions, and communications, whether oral or in writing. Further, the use of preprinted forms by Licensee, such as purchase orders, is for convenience only and all terms and conditions stated on the forms are void and of no effect. This Agreement may be modified only by a writing signed by an authorized officer of the party against whom enforcement thereof is sought. For purposes of this provision, an e-mail or any other electronic or digital communication or transmission shall not constitute a signed writing.
Service Level Agreement
1. Definitions. The following capitalized terms will have the definitions set forth below. Capitalized terms used but not defined herein shall have the meanings accorded to them in the Quotefx SaaS Terms and Conditions.
1.1 "Force Majeure" means any act, event, or occurrence beyond Supplyframe's reasonable control, including, without limitation, issues arising from bugs or other problems in the software, firmware or hardware of Supplyframe's suppliers, outages or issues with network carriers, acts of God, fires, floods, storms, landslides, epidemics, lightning, earthquakes, drought, blight, famine, quarantine, blockade, governmental acts or inaction, orders or injunctions, war, insurrection or civil strife, sabotage, explosions, labor strikes, work stoppages, and acts of terror.
1.2 "Normal Business Hours" means 6:00 a.m. to 5:00 p.m. Pacific Time Monday through Friday excluding Supplyframe observed holidays.
1.3 "Scheduled Downtime" means the total amount of time during any calendar month, measured in minutes, during which Licensee is not able to access the SaaS Offering due to planned system maintenance performed by Supplyframe. Supplyframe will exercise reasonable efforts to perform scheduled system maintenance during the weekend (between Friday evening at 7 p.m. PT and Sunday evening at 7 p.m. PT) or between the hours of 7 p.m. and 7 a.m. Pacific Time during the weekdays. Supplyframe will provide Licensee with reasonable prior notice of such Scheduled Downtime.
1.4 "Total Monthly Time" means the total minutes in the relevant calendar month less Scheduled Downtime. For any partial calendar month during which Licensee subscribes to the SaaS Offering, availability will be calculated based on the entire calendar month, not just the portion for which Licensee subscribed.
1.5 "Unscheduled Downtime" means the total amount of time during any calendar month, measured in minutes, during which there is a total disruption in the operation of the SaaS Offering, other than as a result of Scheduled Downtime, such that customers cannot access the SaaS Offering in accordance with the access protocols set forth in the Quotefx SaaS Terms and Conditions. Unscheduled Downtime shall not include any period during which the SaaS Offering is unavailable as a result of (i) non-compliance by Licensee with any provision of this SLA; (ii) incompatibility of Licensee's equipment or software with the SaaS Offering; (iii) actions or inactions of Licensee or third parties; (iv) Licensee's use of the SaaS Offering after Supplyframe has advised Licensee to modify its use of the SaaS Offering, if Licensee did not modify its use as advised; (v) acts or omissions of Licensee or Licensee's employees, agents, contractors, or vendors, or anyone gaining access to the SaaS Offering by means of Licensee's passwords or equipment; (vi) performance of Licensee's systems or the Internet; (vii) any systemic Internet failures; (viii) network unavailability or Licensee's bandwidth limitations; or (ix) Scheduled Downtime.
1.6 "System Availability" means, with respect to any particular calendar month, the ratio obtained by subtracting Unscheduled Downtime during such month from the Total Monthly Time, and thereafter dividing the difference so obtained by the Total Monthly Time. Represented algebraically, System Availability for any particular calendar month is determined as follows:
2. System Performance
2.1 System Availability: Supplyframe will undertake commercially reasonable measures to ensure that System Availability equals or exceeds a monthly average of ninety-nine point five percent (99.5%) (the "SaaS Offering Standard").
2.2 Access to Support: Licensee may report Unscheduled Downtime at any time by contacting Supplyframe via telephone.
3. Licensee Requirements. Licensee is responsible for procuring, installing and maintaining all equipment, telephone lines, communication interfaces, and other hardware and software (other than the hardware constituting the program control center maintained at Supplyframe's facilities) necessary to remotely access and use the SaaS Offering and to obtain from Supplyframe the Services to be performed under this Agreement. Licensee is responsible for correctly configuring its systems in accordance with any instructions provided by Supplyframe, as may be necessary for provision of access to the features and functions of the SaaS Offering.
A. Service Exclusions. The following conditions, exclusions and limitations shall apply to Supplyframe's obligation to provide the Services under this Agreement:
(i) Agreement Required for Service. No service will be provided under this Agreement unless all Named User Licenses are covered by a current Subscription Order Form.
4.1 Credits Against Fees: In the event Unscheduled Downtime occurs, Licensee will be entitled to credits against its subsequent payment obligations (as set forth in the Agreement) ("SaaS Offering Credits") according to the following table:
SaaS Offering Availability
Credit as a Percentage of Monthly Billing
Less than 99.5% and equal or higher than 95.0%
Less than 95.0% and equal or higher than 90.0%
Less than 90.0%
Licensee's rights under this Section are Licensee's sole and exclusive remedy with respect to any Unscheduled Downtime or any failure by Supplyframe to meet the SaaS Offering Standard in Section 2.1.
4.2 Maximum SaaS Offering Credits: The maximum amount of SaaS Offering Credits that Supplyframe will issue to Licensee for Unscheduled Downtime in a single calendar month will not exceed thirty percent (30%) of the monthly billing for such month.
4.3 Requesting SaaS Offering Credits: As a condition to Supplyframe's obligation to provide SaaS Offering Credits to Licensee, Licensee must request such SaaS Offering Credits by sending an e-mail identifying the date and time of the Unscheduled Downtime for which Licensee is requesting SaaS Offering Credits, with sufficient evidence (including description of the incident and duration of the incident) to Michael Placido (firstname.lastname@example.org) within thirty (30) days following such Unscheduled Downtime. If Licensee fails to request any SaaS Offering Credits to which Licensee is entitled in accordance with this Section 5.3, Supplyframe will have no obligation to issue such SaaS Offering Credits to Licensee.
4.4 Exclusions: Licensee shall have no right to receive SaaS Offering Credits in connection with any failure to meet the SaaS Offering Standard, to the extent such failure is caused by: (i) an event of Force Majeure; (ii) use of the SaaS Offering outside the scope described in the Agreement and the Documentation; (iii) Licensee's equipment and/or third party software, hardware, or network infrastructure; (iv) failure of Licensee to meet the configuration requirements for Licensee equipment as set forth in the Documentation; (v) systemic failure of the external Internet beyond Supplyframe's network; (vi) systemic electrical or internet access disruptions; (vii) any actions or inactions of Licensee or any third party; or (viii) attacks (i.e., hacks, denial of service attacks, malicious introduction of viruses and disabling devices) caused by third parties.