Master SaaS Agreement


    For purposes of this Agreement, the following terms shall have the following meanings:
    1.1 “Affiliates” shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

    1.2 “Application” shall mean the application identified in the Solution Specific Terms and licensed by Customer under this Agreement that acts as a user interface for connecting to the Platform Service in accordance with the Documentation, and shall include, if applicable, any configuration purchased by Customer identified in a Statement of Work.

    1.3 “Authorized Affiliates” shall mean those Affiliates of Customer set forth in the Solution Specific Terms that are authorized to use and access the Services in accordance with the terms and conditions of this Agreement.

    1.4 “Authorized Jurisdiction” shall mean the country or countries where Customer is authorized to use the Services identified in the Solution Specific Terms.

    1.5 “Authorized User” shall mean an employee or contractor of Customer authorized to access and use the Services on behalf of Customer.

    1.6 “Business Day” shall mean a day not being a Saturday or Sunday or a public holiday when banks are open for the conduct of normal business in the jurisdiction listed above in Superfy’s address.

    1.7 “Change of Control” shall mean sale or transfer of Customer’s business or portion of its business to which this Agreement relates, whether voluntarily or involuntarily, by operation of law, merger, consolidation, sale of all or substantially all of the assets or a direct or indirect controlling interest in the equity of the business or the portion of the business to which this Agreement relates or any other similar transaction.

    1.8 “Contract Year” shall mean each period of twelve (12) months (or such shorter period if this Agreement is terminated earlier), commencing on the Effective Date and/or each anniversary of the Effective Date.

    1.9 “Customer Data” shall mean electronic data and information submitted by or for Customer to the Services or collected, stored and processed by or for Customer using the Services, including Personal Data.

    1.10 “Designated Sites” shall mean those specific facilities of Customer, the addresses of which are set forth in the Solution Specific Terms.

    1.11 “Documentation” shall mean the standard documentation for the Services, as generally provided by Superfy to its customers.

    1.12 “Intellectual Property Rights” shall mean worldwide statutory and common law rights associated with (a) patents and patent application; (b) works of authorship, including copyrights, copyright application, copyright registrations, and “moral rights”; (c) the protection of trade and industrial secrets and confidential information; (d) Trademarks (as defined herein); and (e) divisions, continuations, renewals, and re-issuances of any of the foregoing, now existing or acquired in the future.

    1.13 “Order” shall mean the ordering documents for purchases of Services hereunder, including, as applicable, a purchase order or quote for the purchase of Services, in the form provided by Superfy from time to time.

    1.14 “Personal Data” shall mean any data or information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual.

    1.15 “Platform Service” shall mean the Superfy software-as-a-service platform by which software products and services hosted on servers controlled by Superfy and, as applicable, its designees, are made available through the Internet for remote use by Customer.

    1.16 “Professional Services” shall mean, if applicable, training, configuration, implementation or other non-customization services provided by Superfy to Customer, as set forth in a Statement of Work. For the avoidance of doubt, Professional Services under this Agreement will not include any software customizations.

    1.17 “Services” shall mean, collectively, (a) the Platform Service, (b) the Application(s) licensed from Superfy; (c) the Documentation; and (d) any Updates.

    1.18 “Solution Specific Terms” shall mean additional terms and conditions applicable to Customer’s specific solution identified on Exhibit E attached hereto that shall identify the License Fees, Services Fees, Applications, Authorized Jurisdiction, Designated Site, Authorized Affiliates, specific market verticals or field of use, usage limitations, and such other terms and conditions applicable to Customer’s specific use of the Services.

    1.19 “Statement of Work” shall mean a statement of work, in the form attached hereto as Exhibit C, including schedules thereto and any other documents referenced therein, that are entered into between Customer and Superfy from time to time with respect to Professional Services.

    1.20 “Term” shall have the meaning set forth in Section 12.1.

    1.21 “Trademarks” shall mean (a) the trademarks, trade names, and service marks used by a party, whether registered or unregistered; (b) the respective stylistic marks and distinctive logotypes for such trademarks, trade names, and service marks; and (c) such other marks and logotypes as either party may designate from time to time in writing.

    1.22 “Updates” shall mean the object code forms of any modifications, error corrections, bug fixes, new releases, or other updates of or to the Services that may be provided or otherwise made available hereunder by Superfy to Customer during the Term. Updates do not include new functionality, including, without limitation any new versions or new fields of use, for which Superfy charges customers additional fees.

    2.1 Services. Subject to the terms and conditions of this Agreement and the payment of all fees hereunder, Superfy hereby grants to Customer a non-exclusive, nontransferable (except pursuant to Section 13.2), non sublicensable, limited right, during the Term, to (a) access and use the Services as made available by Superfy, solely in accordance with the Documentation and solely for Customer’s own internal business use in the Authorized Jurisdiction and at the Designated Site, and (b) permit Authorized Users to access and use the Services on its behalf. Customer acknowledges that Superfy reserves the right to refuse connection to the Platform Service by any device or application that is not in compliance with the terms and conditions applicable to such device or application, including any Solution Specific Terms. Except as set forth in this Section 2.1, no other right or license of any kind is granted by Superfy to Customer hereunder with respect to the Services.

    2.2 Documentation. Subject to the terms and conditions of this Agreement, Superfy grants to Customer a personal, non-exclusive, non-transferable (except as permitted under Section 13.2), non-sublicensable license to internally use the Documentation for integration, testing, support and training purposes and to support Customer’s exercise of the express licenses granted in Section 2.1, and to make a reasonable number of copies of the Documentation for Customer’s internal business use only.

    2.3 Restrictions. Customer hereby acknowledges and agrees that it shall not use the Services for any purpose other than the purpose for which Superfy has developed the Services, and that it shall use the Services in accordance with all applicable laws, rules, and regulations. Except as expressly provided in Section 2.1, Customer shall not, and shall not permit any Authorized User or third party to: (a) copy all or any portion of the Services; (b) decompile, disassemble or otherwise reverse engineer the Services, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Services or any portion thereof; (c) modify, translate, or create any derivative works based upon the Services; (d) distribute, disclose, market, rent, lease, assign, sublicense, pledge, or otherwise transfer the Services, in whole or in part, to any third party; (e) remove or alter any copyright, Trademark, or other proprietary notices, legends, symbols, or labels appearing on or in the Services; (f) perform, or release the results of, benchmark tests or other comparisons of the Services with other software or materials; (g) use the Services with any site other than the Designated Site(s); (h) permit the Services to be used for or in connection with any outsourcing services, or arrangements, or otherwise used for processing data or other information on behalf of any third party; (i) incorporate the Services or any portion thereof into any other materials, products, or services, or use the Services for production purposes; or (j) use the Services for any purpose other than in accordance with the terms and conditions of this Agreement. In the event of any violation of this Section 2.3, Superfy may immediately terminate this Agreement, and shall be entitled to equitable relief in accordance with Section 8.4.

    2.4 Usage Limitations. The Services may be subject to usage limits, including, quantities of Authorized Users, as provided in the Solution Specific Terms. Unless otherwise set forth herein, (a) the Services may not be accessed by more than that number of Authorized Users set forth in the Solution Specific Terms, (b) passwords may not be shared with any other individual, and (c) identifications may be reassigned to a new Authorized User replacing one who no longer is designated by Customer to use the Services.

    2.5 Prohibited Uses. The Services are not designed, intended, or certified for use in systems involving (a) the operation of weapons, weapons systems, nuclear installations, means of mass transportation, aviation, life support computers, life- saving medical equipment (including resuscitation equipment and surgical implants), pollution control, hazardous substances management, or for any application in which the failure of the Services could create a risk of personal injury or death, or (b) except as agreed to by Superfy in Solution Specific Terms, other medical devices regulated by the United States Food and Drug Act or similar international law or regulation, or to support services or processing of medical or health information, including patient or insured information by healthcare providers or any covered entity or business associates regulated by the U.S. Health Insurance Portability and Accountability Act (“HIPAA”), (“Prohibited Uses”). Customer may not use the Services in connection with any of the foregoing Prohibited Uses, except as specifically authorized pursuant to any Solution Specific Terms.

    2.6 Solution Specific Terms. Customer’s use of the Services is subject to the terms and conditions of this Agreement, including the Solution Specific Terms that are in addition to, or different than, those set forth in the body of these Subscription Terms. Solution Specific Terms may include, among other things: a modified and/or different license grant and/or support and maintenance terms, warranties, specific use restrictions, and other terms and conditions. In the event of conflict between the terms and conditions in the body of this Subscription Agreement, and those Solution Specific Terms, the applicable Solution Specific Terms shall govern and control with respect to Customer’s use of the Services. Notwithstanding the foregoing, if the Service is being provided by Superfy on an “evaluation” or “trial” basis, the licenses herein will be to access and use the Services solely to evaluate such Services, and Customer agrees not to use the Services in any commercial applications or for productive purposes. Any such trial, evaluation, test or demo uses shall be set forth in Solution Specific Terms attached to this Agreement.

    2.7 Designated Site; Authorized Affiliates. Customer shall only use or access the Services at the Designated Site in the Authorized Jurisdiction. Customer may allow Authorized Affiliates to use the Services solely to the extent such Authorized Affiliates and the applicable Designated Sites are listed in the Solution Specific Terms, but solely for so long as the Authorized Affiliate remains an actual Affiliate of Customer, unless earlier terminated or suspended as provided in this Agreement and provided always that Authorized Affiliates comply with the provisions of this Agreement. Unless the context requires otherwise, any references to Customer in this Agreement shall include such Authorized Affiliates. Customer represents and warrants that (a) it has the authority to execute this Agreement for and on behalf of Authorized Affiliates (including as agent for Authorized Affiliates) (b) Superfy shall be entitled to rely upon the authority of the Customer, as agent for Authorized Affiliates, in all matters relating to this Agreement; (c) the consent of Authorized Affiliates shall not be required for any amendment or modification of any provision of this Agreement or for the entry into any Statement of Work by the Customer; (d) Customer shall be fully responsible and assumes all liability for any access and use of the Services by its Authorized Affiliates; (e) where Superfy suffers any loss resulting from any breach by an Authorized Affiliate, Superfy shall be entitled to treat such breach by the Authorized Affiliate as a breach by the Customer for the purposes of making a claim in connection with this Agreement; (f) Customer shall ensure that any claim that an Authorized Affiliate may have under this Agreement Against Superfy is assigned by the relevant Authorized Affiliate to the Customer and managed by the Customer; and (g) nothing in this Agreement shall entitle the Customer and/or Authorized Affiliates to recovery of damages more than once in respect of the same event or series of events giving rise to loss.

    2.8 Prohibited Data. Notwithstanding anything in this Agreement to the contrary, Customer acknowledges that (a) Customer has sole control over any and all Customer Data that is provided and/or transmitted to Superfy, whether directly from Customer, or through the Applications, by Authorized Users, or by any other means; (b) Superfy does not require receipt of or access to any specific type or amount of information to be transmitted to Superfy, except as specifically identified in the Documentation; (c) Customer shall not transmit, disclose or otherwise provide (or cause or allow to be transmitted or provided to Superfy) (i) Personal Data without the data subject’s prior consent to the processing and transfer of their Personal Data in compliance with applicable law; (ii) geolocation information such as device latitude and longitude that is not collected in accordance with applicable law; and/or (iii) any other personal or sensitive information where the transfer to and processing by Superfy would violate applicable local law (“Prohibited Data”). Customer shall indemnify, and hold Superfy harmless from and against, any liability, loss or damage arising from the transmission to Superfy of any Prohibited Information (pursuant to Section 10.3), and Superfy shall have no liability or obligation whatsoever with respect to such Prohibited Data.

    2.9 License to Customer Data. Customer hereby grants to Superfy a worldwide, royalty-free, non-exclusive, limited, nontransferable (except pursuant to Section 13.2) right and license, (a) during the Term, to use, reproduce, distribute, transmit, perform (publicly, digitally, or otherwise), display (publicly or otherwise), and make derivative works of any and all Customer Data for purposes of making the Services available to Customer and for analytic, statistical, security, quality control, and similar purposes, in accordance with the terms of this Agreement; and (b) perpetually during and after the Term, (i) to use, store, process, modify, reproduce and display the Customer Data for Superfy’s internal business purposes, including development, diagnostic, forecasting, planning, analysis and corrective purposes in connection with the Services, and for otherwise improving and enhancing the Services; and (ii) to distribute, disclose and otherwise exploit in any manner Aggregated Data for Superfy’s business purposes, including disclosure within its public statements and marketing materials describing and/or promoting Superfy and/or the Services. “Aggregated Data” means any data obtained by Superfy, including data pertaining to the Services, Superfy’s systems and software, and the use of any of the foregoing, and data which may be derived from Customer Data, which in all instances (i) does not identify an individual and (ii) is not attributed to Customer. Aggregated Data includes data that has been combined into databases which include third party data. Customer represents and warrants to Superfy that (x) it has the right to grant the foregoing licenses in the Customer Data, (y) it has complied with applicable law, including the privacy and data protection laws of the territories from which any Customer Data is obtained, in providing and transmitting (or enabling or permitting the transmission of) any Customer Data to Superfy as provided in this Agreement; and (z) prior to transmitting (or enabling or permitting the transmission of) any Customer Data to Superfy through the Services, Customer shall have obtained applicable consents and approvals required for the collection, transmission and processing of such Customer Data to Superfy for the purposes contemplated under this Agreement and for the grant of the licenses to Superfy herein.

    2.10 Feedback. Superfy shall have, and Customer hereby grants, a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services, or Superfy’s other business, products, and services any feedback or suggestions provided to Superfy by Customer.

    3.1 Customer Identification Numbers and Passwords. Superfy shall provide Customer with identification numbers and passwords, which, as applicable, Customer must use to access and use the Services. Customer (a) hereby acknowledges that it bears sole responsibility for protecting all identification numbers and passwords granted in connection with this Agreement; (b) shall not provide any such information to any third party; and (c) shall remain fully responsible and liable for (and Superfy shall not be responsible or liable for) any unauthorized use of any user identification numbers and passwords.

    3.2 Security. Each of the parties shall use appropriate safeguards to prevent inappropriate use of the Services provided under this Agreement. Each party represents that it has implemented and will maintain administrative, physical, and technical safeguards that is designed to protect the confidentiality, security, integrity, and availability of Customer Data from unauthorized access, destruction, use, modification or disclosure and are no less rigorous than accepted industry practices (including, without limitation, relevant IT security auditing standards). On a periodic basis, each party shall conduct audits of the information technology and information security controls used in complying with its obligations under this Agreement. Customer acknowledges that as a provider of multi-tenant hosted Services, Superfy must provide consistent security measures to all customers, and that it is not feasible for Superfy to accommodate conflicting data security requirements from multiple Superfy customers. Accordingly, Customer hereby agrees that Superfy is not bound by any additional security policies and procedures that Customer may propose, and that Superfy’s inability or refusal to accommodate any such proposed policies and procedures will not be considered a breach by Superfy, nor entitle Customer to seek or obtain any remedies hereunder, or otherwise.

    3.3 Personal Data. Customer shall ensure that it makes its employees, directors and other personnel aware of the contents of Superfy’s privacy notice which is available at Customer acknowledges that Superfy is part of a global company with global operations, and that Personal Data may be processed outside Customer’s country. Customer shall ensure that all transfers of Personal Data to Superfy by, or on behalf of Customer, shall be in accordance with applicable data privacy laws. Customer certifies that it has obtained any and all Personal Data provided to Superfy by, or on its behalf, in accordance with applicable data privacy laws. To the extent required by laws applicable to the Customer and/or Superfy, Superfy’s Data Processing Addendum set forth in Exhibit D shall apply to the processing of Personal Data and Customer hereby instructs Superfy to process the Personal Data in accordance with the terms of this Agreement including the Data Processing Addendum.

    3.4 Service Levels. Superfy shall use commercially reasonable efforts to ensure that the Services are available 99.9% of the time, measured monthly, excluding holidays in the jurisdiction listed in Superfy’s address above and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities, Customer’s acts or omissions, or force majeure events under Section 13.10 or other causes beyond its reasonable control will also be excluded from any such calculation. Superfy will use commercially reasonable efforts to schedule maintenance outside of regular business hours. Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with Service availability shall be that for each period of downtime below 99%, Company will credit Customer 1% of Service fees for each period of 8 hours of downtime. Downtime shall begin to accrue as soon as Customer (with notice to Superfy) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must request credit in writing within five (5) Business Days from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Superfy will only apply a credit to the month in which the incident occurred.

    3.5 Support. During the Term, Superfy shall provide maintenance and technical support, in accordance with the terms and conditions set forth in Exhibit B, and shall make Updates available to Customer as they are made generally available by Superfy to its other customers. Any Update provided or made available by Superfy hereunder shall be deemed part of the Services and shall be subject to the terms and conditions of this Agreement. Superfy will use commercially reasonable efforts to plan any Updates to the Services in a manner to minimize disruptions to the Services. Customer acknowledges that, to the extent Superfy licenses some or all of the Services and/or other components of the Services from third party vendors (“Vendors”), such Vendors, and not Superfy, are responsible for creating Updates and making them available to Superfy for use with the Services.

    3.6 Changes to Services. Customer understands and agrees that Superfy may, from time to time, in Superfy’s sole discretion, improve, enhance, modify and/or expand the features and functionality of the Services purchased by Customer during the Term. Superfy warrants that any changes made to the Services during the Term shall not materially degrade the then-existing features of the Services. Superfy will provide at least six (6) months advance written notice to Customer in the event that a version of the Application will be discontinued. Notwithstanding the foregoing, Superfy reserves the right, without advance notice to Customer, to make any reasonable security-related changes the Services, and in such instances will notify Customer as soon as reasonably practicable and will use reasonable efforts to minimize the impact of such changes.

    3.7 Further Customer Obligations. Customer shall be solely responsible for accessing the Platform Service, Customer Data, and for any and all costs and fees in connection with accessing and using the Services, including, without limitation, Internet service provider fees, telecommunications fees, and the costs of any and all equipment used by Customer in connection with the Services. Customer is also responsible for providing and maintaining connectivity to the Services (broadband internet connection and/or cellular network connectivity) necessary for use of the Services. Customer is solely responsible for ensuring that Customer’s network is adequate for the proper operation and performance of the Services and that it otherwise meets network configuration requirements. Customer acknowledges that Superfy shall have no obligation to assist Customer in using or accessing the Services except as expressly set forth in this Agreement or a Statement of Work. Customer acknowledges that Customer’s performance of its obligations as described in this Agreement and Customer’s timely provision of (and Superfy’s access to) Customer’s personnel, resources, assistance, cooperation, and complete and accurate information and data from the Customer as is reasonably requested by Superfy is essential to the provision of the Services. Superfy shall not be liable for any deficiency, delay or failure in providing the Services or otherwise performing its obligations hereunder if such deficiency, delay or failure results from Customer’s failure to perform such obligations as required hereunder.

    To the extent Superfy agrees to provide any Professional Services, the parties will execute a Statement of Work describing the services to be performed, the fees to be paid to Superfy, and other terms related to such Professional Services. No Statement of Work will have any binding effect unless executed by authorized representatives of each party. The terms of the Statement of Work will govern all such Professional Services.

    5.1 Fees. Customer shall pay to Superfy license fees (“License Fees”) and service fees (“Service Fees”) in the amounts and according to the terms and conditions set forth in the Solution Specific Terms. Unless otherwise set forth in the Solution Specific Terms, all fees listed therein will be due each month of the applicable Term. Superfy may adjust the fees for the Services, effective upon each renewal of this Agreement, by providing Customer with written notice of such adjusted fees at least ninety (90) days prior to the expiration of the then-current Term.

    5.2 Interest. Any amounts payable by Customer to Superfy hereunder which remain overdue for thirty (30) days or longer shall be subject to interest equal to the lesser of one and one-half percent (1.5%) per month and the maximum amount permitted by law, calculated on a daily basis.

    5.3 Suspension. If any fees owed by Customer are more than thirty (30) days past due, Superfy may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full, upon written notice to Customer.

    5.4 Taxes. All prices set forth in this Agreement are in U.S. Dollars and are exclusive of any applicable sales, use, value added, or other fees, governmental charges, or taxes of any nature (other than U.S. taxes on Superfy’s income), including penalties and interest, and all government permit or license fees assessed upon or with respect to any products sold, leased, or licensed to Customer and any services rendered to Customer.

  6. AUDIT
    During the Term and for a period of one (1) year after its expiration or earlier termination, Superfy may, at its own expense (except as set forth below), audit the books and records of Customer insofar as they relate to: (a) the payments due pursuant to this Agreement, in order to verify the sufficiency of payments made by Customer hereunder; and (b) Customer’s compliance with the license restrictions, terms, and conditions set forth in Section 2. Any such audit shall be conducted with at least ten (10) days advance written notice to Customer and only during Customer’s business hours in such manner as not to unreasonably interfere with the normal business activities of Customer. In the event that an audit discloses an underpayment of more than five percent (5%) and/or any non-compliance with the license restrictions, terms, or conditions set forth in Section 2, Customer shall promptly reimburse Superfy for the costs of the audit and, if applicable, the amount of any underpayment.

    As between Superfy and Customer, Superfy and its licensors own and shall retain all right, title and interest, including, without limitation, all Intellectual Property Rights, in and to the Services and any portions thereof, including, without limitation, any copy, modification, improvement or derivative work of the Services (or any portion thereof) and any Updates thereto and all Superfy Confidential Information. Customer agrees to take any action reasonably requested by Superfy to evidence, maintain, enforce, or defend the foregoing. Customer shall not take any action to jeopardize, encumber, limit, or interfere in any manner with Superfy’s or its licensors’ ownership of and rights with respect to the Services, or any derivative work or Update thereof or thereto. Customer shall have only those rights in and to the Services as are expressly granted to it under this Agreement. Customer shall own all right, title and interest, including, without limitation, all Intellectual Property Rights, in and to the Customer Data.

    8.1 Confidential Information. “Confidential Information” means: (a) any information disclosed (directly or indirectly) by one party (in the context of disclosing information under this Agreement, the “Discloser”) to the other party (in the context of disclosing information under this Agreement, the “Recipient”) pursuant to this Agreement that is in written, graphic, machine readable or other tangible form (including, without limitation, research, product plans, products, services, equipment, customers, markets, software, inventions, processes, designs, drawings, formulations, specifications, product configuration information, marketing and finance documents, prototypes, samples, data sets, and equipment) and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature; (b) oral information disclosed (directly or indirectly) by Discloser to Recipient pursuant to this Agreement; provided that such information is designated as confidential at the time of its initial disclosure and reduced to a written summary by Discloser that is marked in a manner to indicate its confidential nature and delivered to Recipient within thirty (30) Business Days after its initial disclosure; and (c) information otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement or by the nature of the information itself. Confidential Information may include information of a third party that is in the possession of Discloser and is disclosed to Recipient under this Agreement. Confidential Information of Customer shall include all Customer Data. Confidential Information of Superfy shall include the Services. Confidential Information of each party shall include the terms of this Agreement.

    8.2 Use and Disclosure Restrictions. Recipient shall not use any Confidential Information of Discloser for any purpose outside of the scope of this Agreement. Recipient shall not disclose any Confidential Information of Discloser to third parties or to Recipient’s employees, except that Recipient may disclose Discloser’s Confidential Information to those employees of Recipient who are required to have such information in order to perform or receive the Services or Professional Services. Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of Discloser. Without limiting the foregoing, Recipient shall take at least those measures that it employs to protect its own confidential information of a similar nature. Recipient shall reproduce Discloser’s proprietary rights notices on any such authorized copies in the same manner in which such notices were set forth in or on the original. Recipient shall promptly notify Discloser of any unauthorized use or disclosure, or suspected unauthorized use or disclosure, of Discloser’s Confidential Information of which Recipient becomes aware.

    8.3 Exclusions. The foregoing restrictions pertaining to the Confidential Information shall not apply with respect to any Confidential Information that: (a) was or becomes publicly known through no fault of Recipient; (b) was known by Recipient before receipt from Discloser, as evidenced by its written records; (c) becomes known to Recipient without confidential or proprietary restriction from a source other than Discloser that does not owe a duty of confidentiality to Discloser with respect to such Confidential Information; or (d) is independently developed by Recipient without the use of the Confidential Information. In addition, Recipient may use or disclose Confidential Information to the extent (i) expressly approved by Discloser in writing and/or (ii) Recipient is legally compelled to disclose such Confidential Information, provided, however, prior to any such compelled disclosure Customer shall cooperate fully with Discloser 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.

    8.4 Equitable Relief. Each party acknowledges and agrees that, due to the unique nature of Discloser’s Confidential Information, there can be no adequate remedy at law to compensate Discloser for the breach of this Section 8; and, therefore, that upon any such breach or threat thereof, Discloser shall be entitled to seek injunctive and other appropriate equitable relief (without the necessity of proving actual damages or of posting a bond), in addition to whatever remedies it may have at law, hereunder, or otherwise.

    9.1 Mutual Representations. Each party represents and warrants to the other party that the execution, delivery and performance of this Agreement (a) is within its corporate powers, (b) has been duly authorized by all necessary corporate action on such party’s part, and (c) does not and shall not contravene or constitute a default under, and is not and shall not be inconsistent with, any judgment decree or order, or any contract, agreement, or other undertaking, applicable to such party.

    9.2 Limited Warranty. Subject to the limitations set forth in this Agreement, Superfy represents and warrants to Customer that the Services, when used in accordance with the Documentation, shall throughout the Term substantially conform to the functional specifications in such Documentation as delivered to Customer. If Customer finds what it reasonably believes to be a failure of the Services to substantially conform to the functional specifications in the Documentation, and provides Superfy with a written report that describes such failure in sufficient detail to enable Superfy to reproduce such failure, Superfy shall use commercially reasonable efforts to correct or provide a workaround for such failure at no additional charge to Customer in accordance with Exhibit B. SUPERFY MAKES NO WARRANTY THAT ALL ERRORS, FAILURES, OR DEFECTS SHALL BE CORRECTED, OR THAT ACCESS TO OR USE OF THE SERVICES SHALL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY SUPERFY, ITS AGENTS, OR ITS EMPLOYEES, SHALL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT. Except as provided in Section 3.4, this Section 9.2 states the entire liability of Superfy and the sole and exclusive remedy of Customer with respect to any express or implied warranties hereunder or otherwise in connection with this Agreement.


    9.4 Defects Not Covered by Warranties. Superfy shall have no obligations under Section 9.2 or Section 3.4 for any nonconformance or failure of, or error in, the Services is caused by: (a) neglect, or misuse of the Services, or any use of the Services that is not in accordance with this Agreement and/or the Documentation; (b) alteration, modification, or enhancement of the Services, except as may be performed by Superfy; (c) failure to provide a suitable installation or use environment for all or any part of the Services; (d) use of the Services with any hardware or systems not provided by Superfy; or (e) acts or omissions of Customer in connection with its access and use of the Services. Superfy’s services in making such determination and in remedying any problem caused by the foregoing shall be deemed to be Professional Services and shall be billed to Customer in accordance with Superfy’s then-current time-and-material fees.

    10.1 Indemnity Obligations of Superfy. Superfy shall defend any action brought against Customer to the extent it is based on a third party claim that use by Customer of the Services as furnished hereunder, which use is in accordance with the terms and conditions of this Agreement, directly infringes any valid patent, copyright, or trade secret in the Authorized Jurisdiction. Superfy shall pay any liabilities, costs, damages, and expenses (including reasonable attorney’s fees) finally awarded against Customer in such action that are attributable to such claim or any amount agreed to by Superfy in settlement of such claim. Should the Services become, or be likely to become in Superfy’s opinion, the subject of any claim of infringement, Superfy may, at its option: (i) procure for Customer the right to continue using the potentially infringing materials; (ii) replace or modify the potentially infringing materials to make them non-infringing; or (iii) terminate this Agreement and refund to Customer a pro-rated portion of any unused License Fees paid hereunder.

    10.2 Exclusions. Superfy shall have no liability for any claim based upon: (a) the use, operation, or combination of the Services with non-Superfy programs, data, hardware, equipment, or documentation, if liability would have been avoided but for such use, operation, or combination; (b) use of other than the then-current, unaltered version of the Services; (c) Customer’s or its agents’ or employees’ activities after Superfy has notified Customer that Superfy believes such activities may result in infringement; (d) any modifications to the Services made by Customer or by Superfy in accordance with Customer specifications; (e) any third party software; (f) any Customer Data; or (g) Customer’s breach or alleged breach of this Agreement. In addition, Superfy shall have no liability for a claim to the extent the Customer is obligated to indemnify Superfy against such claim pursuant to Section 10.3 below. This Section 10 states the entire liability of Superfy and the exclusive remedy of Customer with respect to infringement of any intellectual property or other rights, whether under theory of warranty, indemnity, or otherwise.

    10.3 Indemnity Obligations of Customer. Except to the extent that Superfy is obligated to indemnify Customer as set forth above, Customer will defend, or at its option settle any third party claim (including claims or actions by regulatory authorities) brought against Superfy or its Affiliates or their officers, employees, or agents in connection with or resulting from (a) use of the Services by Customer or any Authorized User in violation of this Agreement or applicable law; or (b) any allegation that Superfy’s collection, storage, use, processing or disclosure of Customer Data in accordance with this Agreement violates Customer’s privacy policy or applicable law; (c) any breach by Customer of this Agreement; or (d) any claim related to unauthorized access, loss, disclosure, use or destruction of Customer Data. Customer shall pay any liabilities, costs, damages, and expenses (including reasonable attorney’s fees) finally awarded against Superfy in such action that are attributable to such claim or any amount agreed to by Customer in settlement of such claim.

    10.4 Procedure. The indemnification obligations of each party are subject to compliance by the indemnified party with the terms of this Section 10.4. The party seeking indemnification under this Section 10 will: (a) provide notice of the applicable indemnified claim to the indemnifying party within a reasonable time after becoming aware of such claim (unless the indemnified party is legally precluded from providing such notice); (b) provide reasonable assistance to the indemnifying party in the defense of the indemnified claim; and (c) tender the control of the defense of the indemnified claim to the indemnifying party, who will promptly assume and conduct (at its own expense) the full defense and/or settlement of the indemnified claim. The indemnifying party shall not have the right to settle any indemnified claim, without the prior written consent of the indemnified party, which contains an admission of liability or wrongdoing on the part of the indemnified party or imposes a material obligation (including payment obligation) on the indemnified party that is not wholly discharged by the indemnifying party. The indemnified party may, at its sole expense, participate in the defense and settlement of any claim for which it is entitled to indemnification hereunder.



    12.1 Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for an initial period of three (3) years therefrom, and shall automatically renew for successive one (1) year periods unless either party notifies the other of its intention not to renew prior to ninety (90) days before the end of the then-current term.

    12.2 Termination for Default. If either party materially defaults in any of its obligations under this Agreement, the non-defaulting party, at its option, shall have the right to terminate this Agreement by written notice to the other party unless, within thirty (30) calendar days after written notice of such default, the defaulting party remedies the default. Notwithstanding anything herein to the contrary, in the event Customer breaches Sections 2.3, 2.4, 2.5 and/or 8 of this Agreement, Superfy may immediately terminate this Agreement upon notice to Customer. Customer shall notify Superfy within twenty-four (24) hours of Customer’s becoming aware of any breach (other than by Superfy) of the terms and conditions of this Agreement, including, without limitation, any breach of Sections 2.3, 2.4, 2.5 or 8.

    12.3 Termination for Bankruptcy. Either party may terminate this Agreement if the other party (a) becomes insolvent; (b) fails to pay its debts or perform its obligations in the ordinary course of business as they mature; (c) is declared insolvent or admits its insolvency or inability to pay its debts or perform its obligations as they mature; (d) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment, or composition, or makes a general assignment for the benefit of creditors, provided that, in the case of an involuntary proceeding, the proceeding is not dismissed with prejudice within sixty (60) days after the institution thereof; or (e) any event analogous to the events set out in subsections (a) – (d) occurs in any jurisdiction.

    12.4 Termination for Change of Control. Superfy may terminate this Agreement immediately by providing Customer written notice if Customer undergoes a Change of Control. This right will survive for ninety (90) Business Days following the closing of such Change of Control.

    12.5 Data Transfer. Upon request by Customer made within ten (10) Business Days after the effective date of termination or expiration of this Agreement, Superfy will make the Customer Data available to Customer for export or download as provided in the Documentation. After such period, Superfy will have no obligation to maintain or provide any Customer Data, and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control as provided in the Documentation, unless prohibited by applicable law.

    12.6 Effect of Termination. Upon the expiration or termination of this Agreement, all rights and licenses granted to Customer hereunder shall immediately terminate. Within ten (10) days after any termination or expiration of this Agreement, Customer shall, at its sole expense, return to Superfy (or destroy, at Superfy’s sole election) all embodiments of the Services and Confidential Information (and all copies and extracts thereof) then in the possession or under the control of Customer and its current or former employees, and certify the foregoing to Superfy in writing. Termination of this Agreement by either party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either party from any liability for breach of such party’s obligations under this Agreement. Neither party shall be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms. Either party’s termination of this Agreement shall be without prejudice to any other right or remedy that it may have at law or in equity, and shall not relieve either party of breaches occurring prior to the effective date of such termination. The provisions of Sections 1 (“Definitions”), 2.3 (“Restrictions”), 2.4 (“Usage Limitations”), 2.5 (“Prohibited Uses”), 2.9 (“License to Customer Data”), 2.10 (“Feedback”), 6 (“Audit”), 7 (“Proprietary Rights”), 8 (“Confidential Information”), 10 (“Indemnification”), 11 (“Limitation of Liability”), 12 (“Term and Termination”) and 13 (“General Provisions”), and 5 (“Fees and Payment”) (with respect to amounts accrued but as-yet unpaid), shall survive the expiration or any termination of this Agreement.

    13.1 Notices. Any notice, request, demand or other communication required or permitted hereunder shall be in writing, shall reference this Agreement, and shall be deemed to be properly given: (a) when delivered personally; (b) five (5) Business Days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) two (2) Business Days after deposit with a nationally recognized overnight private industry express courier (e.g., Federal Express or DHL); or (d) five (5) Business Days after the time and date stamp on electronic mail, transmitted to the following electronic mail address: (i) for notices to Superfy, and (ii) for notices to Customer, the email address identified in the cover page to this Agreement. All notices shall be sent to the address set forth above (or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section 13.1).

    13.2 Assignment. This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law, or otherwise, by Customer without the prior written consent of Superfy; provided, Customer may assign this Agreement in connection with a Change of Control of Customer if Customer provides Superfy with forty-five (45) Business Days’ prior written notice of such assignment, subject to Section 12.4. Subject to the preceding sentence, the rights and liabilities of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns. Any attempted assignment other than in accordance with this Section 13.2 shall be null and void.

    13.3 Governing Law, Place of Arbitration. Customer’s domicile (and not that of its Authorized Affiliates) will determine the Superfy entity with whom Customer is contracting under this Agreement, what law will apply in any dispute arising out of or in connection with this Agreement, the place of arbitration for any such dispute, and where notices to Superfy should be directed. If Customer is located in (a) the United States of America, Superfy Limited. will be the contracting party to this Agreement, (b) Europe, Superfy Limited will be the contracting party to this Agreement. will be the contracting party to this Agreement. Each party agrees to the applicable governing law (without regard to choice or conflicts of law rules), and the place of arbitration, as set forth in this Section 13.3. If Superfy Ltd – Ireland is the contracting party to this Agreement, then the governing law shall be the laws of the Republic of Ireland without reference to its conflicts of law provisions, and the place of arbitration shall be Dublin, Ireland. If Superfy Limited is the contracting party to this Agreement, then the governing law shall be the laws of the People’s Republic of China without reference to its conflicts of law provisions, and the place of arbitration shall be Shanghai, PRC. If Superfy Limited. is the contracting party to this Agreement, then the governing law shall be the laws of Ireland without reference to its conflicts of law provisions, and the place of arbitration shall be Ireland. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or the transactions described herein. Each party hereby waives any right to trial by jury in connection with any action or proceeding arising from or related to this Agreement.

    13.4 Arbitration. Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall first be submitted to executives from each party for good faith negotiations. If after fifteen (15) Business Days, the parties are unable to settle such dispute, the dispute shall be submitted to mandatory mediation, to be administered by a commercial mediator experienced in the subject matter hereof. Customer and Superfy shall each propose up to three (3) mediators, and shall select one (1) of such mediators by mutual agreement. If a party refuses to submit to mediation or if the mediation is unsuccessful, the dispute shall be settled by binding arbitration. Unless otherwise agreed by the parties, arbitration will be submitted before a single arbitrator experienced in the subject matter hereof. Customer and Superfy will each select an arbitrator, and those two arbitrators will select the third arbitrator that will be the official arbitrator for the proceedings. If the arbitrators are unable to agree on the identity of the third arbitrator within thirty (30) Business Days of the written demand by a party to submit to arbitration, then the arbitrator shall be selected in accordance with the rules applicable to the arbitration, as set forth in this Section. Mediation and arbitration shall be under (a) if California law governs this Agreement pursuant to Section 13.3, the American Arbitration Association Commercial Arbitration Rules and Mediation Procedures; (b) if Irish law governs this Agreement pursuant to Section 13.3, the International Arbitration Rules of the International Centre for Dispute Resolution, (c) if Chinese or Taiwanese law governs this Agreement pursuant to Section 13.3, the Singapore Convention on Mediation or the Arbitration Rules of the Singapore International Arbitration Centre, as applicable. The place and location of mediation and arbitration, if applicable, shall be in the applicable place of arbitration identified in Section 13.3. The language to be used in the mediation and arbitral proceeding shall be English. The arbitration award shall be final and binding on the parties and judgment on the award may be entered in any court of competent jurisdiction. The prevailing party in any arbitration shall be entitled to reasonable attorneys’ fees and expenses from the other party as part of the arbitration award. Either party may request any competent judicial or other authority to order any provisional or conservatory measure (including any injunction), either prior to the institution of the arbitration proceeding or during such proceeding, for the preservation of its rights and interests.

    13.5 Construction. This Agreement has been negotiated by the parties and their respective counsel. This Agreement shall be interpreted fairly in accordance with its terms and without any construction in favor of or against either party.

    13.6 Attorneys’ Fees. If any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to this Agreement or the breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a dismissal without prejudice, shall be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorney fees paid or incurred in good faith.

    13.7 Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.

    13.8 Severability. If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.

    13.9 Relationship of the Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the parties. Neither party, nor either party’s agents, have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.

    13.10 Force Majeure. Except for the payment of monies due hereunder, neither party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, error in the coding of electronic files, Internet or other network “brownouts” or failures, power failures, novelty of product manufacture or other unanticipated product development problems, and acts of civil and military authorities; provided that such party gives the other party prompt written notice of the failure to perform and the reason therefor and uses its reasonable efforts to limit the resulting delay in its performance.

    13.11 Public Announcements. Customer shall cooperate with Superfy so that Superfy may issue a press release concerning this Agreement; provided, however, Superfy may not release any such press release without the prior approval of Customer (which shall not be unreasonably withheld, delayed, or conditioned). Superfy shall have the right to use Customer’s name as a customer reference, and to use Customer’s Trademarks on Superfy’s customer lists, website and other marketing materials.

    13.12 U.S. Government Rights. If Customer is, or is entering into this Agreement on behalf of, any agency or instrumentality of the United States Government, the Services and the Documentation are “commercial computer software” and “commercial computer software documentation”, and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of the Services and the Documentation are governed by the terms of this Agreement.

    13.13 Export Controls. Customer shall abide, and contractually require all Authorized Users to abide, by all applicable export laws and regulations in its use of the Services. None of the Services may be downloaded or otherwise exported or re-exported (a) into any country for which the United States has a trade embargo, (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders or (c) into any country or territory with applicable analogous trade sanctions or to any person subject to analogous designations or denial orders. Customer represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list.

    13.14 Captions and Section Headings. The captions and Section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.

    13.15 Counterparts. This Agreement may be executed in one or more counterparts, with the same effect as if the parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one Agreement.

    13.16 English Language. This Agreement, any disputes hereunder, and all Services will be provided and conducted in the English language.

    13.17 Entire Agreement. (a) This Agreement, including any Orders, Purchase Terms, and the Exhibit(s) attached hereto, constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes (i) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter of this Agreement, and (ii) all past courses of dealing and industry custom. (b) Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. (c) Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement. (d) Nothing in this Section shall limit or exclude any liability for fraud.

    13.18 Amendment. Save as expressly set out in this Agreement, no amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized signatory of Superfy and Customer.
    13.19 Conflicts. In the case of conflicts, discrepancies, errors or omissions among the body of these Subscription Terms, exhibits, and any Orders, such documents and amendments to them shall take precedence and govern in the following order: (a) Exhibit D (Data Processing Addendum), (b) Statement of Work, (c) exhibits to this Agreement other than these Subscription Terms, (d) the body of these Subscription Terms, (e) the Superfy quotation, and (f) Customer’s purchase order.