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Software as a Service Agreement

PLEASE READ THIS AGREEMENT BEFORE USING AUTOHOST’S SERVICES. BY ACCESSING OR USING AUTOHOST’S INTELLIGENT GUEST SCREENING PLATFORM, YOU (“Customer”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AS OF THE DATE YOU FIRST ACCESS THE SAAS SERVICES. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES.

 

This software as a service agreement (“SaaS Agreement”) is entered into between Customer and Autohost, Inc. (“Provider”), a Canadian corporation with its principal place of business at 200-60 Atlantic Avenue, Toronto, Ontario. Provider and Customer agree that the following terms and conditions will apply to the Services.

Article I.                 Definitions

Authorized User” means each Customer employee designated by Customer to serve as technical administrator of the SaaS Services on Customer’s behalf.

Customer Content” means all data and materials provided by Customer to Provider for use in connection with the SaaS Services.

Data Controller” or “Controller” has the meaning assigned in the GDPR.

Documentation” means the user guides, online help, release notes, training materials and other documentation provided or made available by Provider to Customer regarding the use or operation of the SaaS Services.

Force Majeure Event” means any delay, loss, damage, cost, claim, loss of profit or consequential loss caused by or resulting from:

(a)     any prohibition, enactment, embargo or other limitation imposed by any government or local authority;

(b)     war, industrial action or civil commotion;

(c)     destruction or damage to buildings by fire, storm, tempest, vandalism, lightning, explosion or bursting or overflowing of water tanks;

(d)     the failure or withdrawal of public service;

(e)     acts of God; or

(f)      any other cause beyond Provider’s control.

GDPR” means the European General Data Protection Regulation 2016/679.

Personal Data” means any information about an identified or identifiable individual.

SaaS Services” refer to the specific Provider service identified in a Schedule that provides use of the intelligent guest screening platform that is hosted by Provider or its services provider and made available to Customer over a network on a term-use basis.

Schedule” is a written document attached to this SaaS Agreement or executed separately by Provider and Customer for the purpose of purchasing SaaS Services under the terms and conditions of this SaaS Agreement.

Software” means the object code version of any software to which Customer is provided access as part of the Service, including any updates or new versions.

Services” means, collectively, the SaaS Services, the Support Services and the Maintenance Services.

Service Level Failure” means a material failure of the SaaS Services to meet the Availability Requirement.

Subscription Term” shall mean that period during which Customer has access and use of the Software through Provider’s SaaS Services. The Subscription Term shall renew for successive 12- month periods unless either party delivers written notice of non-renewal to the other party at least 60 days prior to the expiration of the then-current Subscription Term.

Support and Maintenance Services” means Provider’s standard customer support and maintenance services as provided in the context of this SaaS Agreement, including, upon Customer request, determining Equifax credit ratings, in accordance with Exhibit A.

Article II.               SaaS Services

Section 2.01           License. During the Subscription Term, Customer will receive a non-exclusive, non-assignable, royalty free, worldwide right to access and use the SaaS Services solely for the internal business operations subject to the terms of this Agreement.

Section 2.02           No Delivery. Customer acknowledges this SaaS Agreement is a services agreement and Provider will not be delivering copies of Software to Customer as part of the Services.

Article III.             Restrictions

Customer shall not, and shall not permit anyone to:

(a)     copy or republish the Services, Software or Documentation,

(b)     make the Services available to any person other than Authorized Users,

(c)     use or access the Services, Software or Documentation to provide service bureau, time-sharing or other services to third parties,

(d)     modify or create derivative works based upon the Services, Software or Documentation,

(e)     remove, modify or obscure any copyright, trademark, or other proprietary notices contained in the Services, Software or Documentation,

(f)      reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Services, Software and Documentation, except and only to the extent such activity is expressly permitted by applicable law, or

(g)     access the Services, Software and Documentation in order to build a similar product or competitive product.

Subject to the limited licenses granted herein, Provider shall own all right, title and interest in and to the Software, Services, Documentation, and other deliverables provided under this SaaS Agreement, including all modifications, improvements, upgrades, derivative works and feedback related hereto and intellectual property rights therein. Customer agrees to assign all right, title and interest it may have in the foregoing to the Provider.

Article IV.             Customer Responsibilities

Section 4.01           Assistance. Customer shall provide commercially reasonable information and assistance to Provider to enable Provider to deliver the SaaS Services. Upon request from Provider, Customer shall promptly deliver information in an electronic format specified by Provider. Customer acknowledges that Provider’s ability to deliver SaaS Services in the manner provided in this SaaS Agreement may depend upon the accuracy and timeliness of such information and assistance.

Section 4.02           Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with the use of the Services, including those laws related to data protection and privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Provider exercises no control over the content of the information transmitted by Customer through the SaaS Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.

Section 4.03           Unauthorized Use; False Information. Customer shall:

(a)     notify Provider immediately of any unauthorized use of any account or any other known or suspected breach of security;

(b)     report to Provider immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer or any other Authorized User; and

(c)     not provide false identity information to gain access to or use the SaaS Services.

Section 4.04           Administrator Access. Customer shall be solely responsible for the acts and omissions of its Authorized Users. Provider shall not be liable for any loss of data, including any loss of or unauthorized access to Customer Personal Data or functionality caused directly or indirectly by any Authorized User.

Section 4.05           Customer Input. Customer is solely responsible for collecting, inputting and updating all Customer Content stored as part of the SaaS Services and for ensuring that the Customer Content does not

(a)     include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark, or other intellectual property right of any third party, or

(b)     contain anything that is obscene, defamatory, harassing, offensive or malicious.

Section 4.06           License from Customer. Subject to the terms and conditions of this SaaS Agreement, Customer grant Provider a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide SaaS Services to Customer.

Section 4.07           Third Party API Access. Customer agrees that access to the required third party software APIs, for the successful integration of the SaaS Services, is solely the responsibility of the Customer. Any fees associated with API access is also solely the responsibility of the Customer.

Section 4.08           Ownership and Restrictions. Customer retains ownership and intellectual property rights in and to Customer Content. Provider or its licensors retain all ownership and intellectual property rights to the Services, Software, Documentation and anything developed and delivered under the SaaS Agreement. Third party technology that may be appropriate or necessary for use with the Provider platform is governed by the terms of the third party technology license agreement specified by Provider and not under the SaaS Agreement.

Section 4.09           Suggestions. Provider shall provide royalty-free, worldwide, irrevocable, perpetual license to use and incorporate the SaaS Services any suggestions, enhancement requests, recommendation or other feedback provided by the Customer, including Authorized Users, relating to the operation of the SaaS Services.

Section 4.10           Non-Solicitation. During the Subscription Term and for two years after, Customer shall not, and shall not assist any other person to, directly or indirectly, in any manner recruit or solicit for employment or engagement as an independent contractor any person then or within prior 12 months employed or engaged by Provider or any subcontractor and involved in any respect with the Services or the performance of this SaaS Agreement A general advertisement or notice of a job listing or opening or similar general publication of a job search or availability to fill employment positions, including on the Internet, shall not be construed as a solicitation or inducement for the purposes of Section 4.09, and the hiring of any such employees or independent contractor who freely responds thereto shall not be a breach of this Section 4.10.

Section 4.11           Breach of Non-Solicitation. In the event of a violation of Section 4.10, Customer shall, on demand, pay to Provider as liquidated damages a sum equal to one year’s basic salary or fees payable by Provider or any subcontractor to that employee, worker, or independent contractor plus the recruitment costs incurred by the Provider or subcontractor in replacing such person.

Article V.               Orders and Payments

Section 5.01           Orders. Customer shall order SaaS Services pursuant to a Schedule. All Services acquired by Customer shall be governed exclusively by this SaaS Agreement and the applicable Schedule. In the event of a conflict between the terms of a Schedule and this SaaS Agreement, the terms of the Schedule shall take precedence.

Section 5.02           Invoicing and Payment. Unless otherwise provided in the Schedule, Provider shall invoice the Customer for all fees on a monthly basis. Customer shall pay all undisputed invoices within 30 days after the Customer receives the invoice. Except as expressly provided otherwise, fees are non-refundable. All fees are stated in United States Dollars, and must be paid by the Customer to Provider in United States Dollars.

Section 5.03           Expenses. Customer will reimburse Provider for its reasonable, out-of-pocket travel and related expenses incurred in performing the Services. Provider shall notify and obtain approval from Customer prior to incurring any expense. Provider shall comply with Customer’s travel and expense policy if made available to Provider prior to the required travel or expense.

Section 5.04           Taxes. Provider shall bill Customer for applicable taxes as a separate line item on each invoice. Customer shall be responsible for payment of all sales, service, use and excise taxes, value added taxes (VAT), duties, and similar charges imposed by any federal, provincial, or territorial government or regulatory authority relating to Customer’s purchase and use of the Services.

Article VI.             Term and Termination

Section 6.01           Term of SaaS Agreement. The term of this SaaS Agreement shall begin on the date the Services are accessed by the Customer and, unless terminated earlier under any of this SaaS Agreement’s express provisions, shall continue in effect for the Subscription Term.

Section 6.02           Renewal. This SaaS Agreement will automatically renew for additional successive one year terms unless earlier terminated under this SaaS Agreement’s express provisions or either party gives the other party written notice of non-renewal (ninety) 90 days before the expiration of the then current term..

Section 6.03           Termination. Either party may terminate this SaaS Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach.

Section 6.04           Suspension for Non-Payment. Provider reserves the right to suspend delivery of the SaaS Services if Customer fails to timely pay any undisputed amounts due to Provider under this SaaS Agreement, but only after Provider notifies Customer of such failure and such failure continues for fifteen (15) days. Suspension of the SaaS Services shall not release Customer of its payment obligations under this SaaS Agreement. Customer agrees that Provider shall not be liable to Customer or to any third party for any liabilities, claims, or expenses arising from or relating to suspension of the SaaS Services resulting from the Customer’s nonpayment.

Section 6.05           Effect of Termination.

(a)     Upon termination of this SaaS Agreement or expiration of the Subscription Term, Provider shall immediately cease providing SaaS Services and all usage rights granted under this SaaS Agreement shall terminate.

(b)     If Provider terminates this SaaS Agreement due to breach by Customer, then Customer shall immediately pay all amounts due under this SaaS Agreement and to become due during the remaining term of this SaaS Agreement, but for such termination. If Customer terminates this SaaS Agreement due to a breach by Provider, then Provider shall immediately repay to Customer all pre-paid amounts for any unperformed SaaS Services scheduled to be delivered after the termination date.

Upon termination of this SaaS Agreement and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information (as defined below) shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between parties.

Article VII.           Service Levels

Section 7.01           Required Levels.

(a)     Provider will use commercially reasonable efforts to make the SaaS Services available at least 99% of the time as measured over the course of each calendar month during the Subscription Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this Section 7.01 (the “Availability Requirement”).

(b)     For the purposes of calculating the Availability Requirement, the following “Exceptions” to the Availability Requirement, and neither the SaaS Services will be considered un-available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the SaaS Services to the extent to any:

              (i)    Customer failure;

            (ii)    Internet connectivity of Customer or Authorized User;

           (iii)    Force Majeure Event;

           (iv)    Failure, interruption, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Provider under this SaaS Agreement;

            (v)    Scheduled Downtime, subject to Section 7.03; or

           (vi)    disabling, suspension, or termination of the SaaS Services under Section 6.04.

Section 7.02           Service Level Failures and Remedies. In the event of a Service Level Failure, Provider shall issue a credit to Customer in the amount of 50% of the monthly fees for the SaaS Services due for the Service Period in which the Service Level Failure occurred (each, a “Service Credit”), provided that Provider has no obligation to issue any Service Credit unless Customer:

(a)     reports the Service Level Failure to Provider immediately on becoming aware of it; and

(b)     requests such Service Credit in writing within thirty (30) days of the Service Level Failure.

The Service Credit accruing with respect to the Service Level Failure in any month will be applied against fees payable in the immediately following month and, in the event of a Service Credit accruing with respect to a Service Level Failure in the last month of the Subscription Term, will be paid to Customer within thirty (30) days following the expiration of the Subscription Term. This Section 7.02 sets forth the Provider’s sole obligation and liability, and the Customer’s sole remedy, for any Service Level Failure.

Section 7.03           Scheduled Downtime. Provider will:

(a)     use commercially reasonable efforts to schedule downtime for routine maintenance of the SaaS Services between the hours of 12 a.m. and 9 a.m. EST; and

(b)     give Customer at least 48 hours prior notice of all scheduled outages of the SaaS Services (the “Scheduled Downtime”).

Scheduled Downtime will not exceed a duration of twelve (12) hours in any one (1) month period.

Section 7.04           Service Support. Provider may amend the Support and Maintenance Services from time to time in its sole discretion upon notice to Customer.

Article VIII.          Warranties

Section 8.01           Mutual Representations and Warranties. Each party represents and warrants to the other party that:

(a)     it is a corporation or limited liability company incorporated or organized and validly existing in the jurisdiction of its incorporation or organization;

(b)     it has all required corporate or company power and capacity to enter into this SaaS Agreement, to grant the rights and licenses granted under this SaaS Agreement and to perform its obligations under this SaaS Agreement;

(c)     the execution of this SaaS Agreement has been duly authorized by all necessary corporate or company action; and

(d)     when executed and delivered by each of the parties, this SaaS Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

Section 8.02           Additional Provider Representations, Warranties, and Covenants. Provider represents, warrants, and covenants to Customer that it will perform the Services using personnel of required skill, experience and qualifications and in a professional workmanlike manner in accordance with the commercially reasonable industry standards for similar services and will devote adequate resources to meet its obligations under this SaaS Agreement.

Section 8.03           Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants and covenants to Provider that Customer owns or otherwise has, and will have, the necessary rights and consents in and relating to the Customer Content so that, as received by Provider and processed in accordance with this SaaS Agreement, they do not and will not infringe, misappropriate or otherwise violate any intellectual property, privacy or other rights of any third party or violate any applicable law.

Section 8.04           Disclaimer of Conditions and Warranties. Except for the express warranties set forth in Section 8.01, Section 8.02 and Section 8.03, all Services, Software and Documentation are provided “as is” and Provider hereby disclaims all conditions and warranties, whether express, implied, statutory or otherwise under this SaaS Agreement, and Provider specifically disclaims all implied conditions and warranties of merchantability and fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, usage or trade practice. Without limiting the foregoing, Provider makes no condition or warranty of any kind that the Services, Software or Documentation will:

(a)     meet Customer’s or any other person’s requirements;

(b)     operate without interruption;

(c)     achieve any intended result;

(d)     be compatible or worth with any software, system or other services except if and to the extent expressly set forth in any written specifications provided from the Provider to the Customer in connection with this SaaS Agreement; or

(e)     be secure, accurate, complete, free of harmful code or error free.

All third-party materials are provided “as is” and any representation or warranty concerning any third-part materials is strictly between the Customer the third-party owner or distributor of the third-party material.

Article IX.             Limitation of Liability

Section 9.01           Exclusions of Damages. Except as otherwise provided in Section 8.01 or in Section 9.02, in no event will Provider be liable under or in connection with this SaaS Agreement or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, for any:

(a)     loss of production, use, business, revenue or profit or diminution in value;

(b)     impairment, inability to use or less, interruption or delay of the Services, other than for the issuance of any applicable Service Credits under Section 7.02;

(c)     loss, damage, corruption or recovery of data, including Customer Personal Data;

(d)     breach of data or system security; or

(e)     consequential, incidental, indirect, special, aggravated, punitive or exemplary damages, regardless of whether such person were advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable, and notwithstanding the failure of its essential purpose.

Section 9.02           Cap on Monetary Liability. In no event will the collective aggregate liability of Provider under or in connection with this SaaS Agreement or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, exceed the average fees paid by the Customer over the six month period prior to the incident giving rise to the liability. The foregoing limitation applies notwithstanding the failure of this SaaS Agreement’s essential purpose.

Article X.               Indemnification

Section 10.01         Provider Indemnification. Provider shall indemnify, defend and hold harmless Customer and Customer's officers, directors, employees, agents, permitted successors and permitted assigns (each, a “Customer Indemnitee”) from and against any and all losses incurred by such Customer Indemnitee arising out of or relating to any action by a third party (other than an affiliate of a Customer Indemnitee) to the extent that such losses arise from:

(a)     any allegation in such action that Customer's use of the Services (excluding Customer Content and third-party materials) in compliance with this SaaS Agreement infringes an intellectual property right,

(b)     any allegation in such action that Customer’s use of the Services violates any laws prohibiting discrimination, or

(c)     any allegation in such action that Provider or its subcontractors or consultants have been the subject of a data breach involving Customer Content.

The foregoing obligation does not apply to any action or losses to the extent arising out of or relating to any:

(d)     access to, or use of, the Services in combination with any hardware, system, software, network, or other materials or service not provided or authorized in writing by Provider;

(e)     modification of the Services other than:

              (i)    by or on behalf of Provider; or

            (ii)    with Provider’s written approval in accordance with Provider’s written specification; or

(f)      failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Provider.

Section 10.02         Customer Indemnification. Customer shall indemnify, defend and hold harmless Provider and its subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors and permitted assigns (each, a “Provider Indemnitee” and for whom the Provider holds such rights in trust) from and against any and all losses incurred by such Provider Indemnitee in connection with any action by a third party (other than an affiliate of a Provider Indemnitee) that arises out of or relates to any:

(a)     Customer Content, including any processing of Customer Content by or on behalf of Provider in accordance with this Agreement, which may also include Customer Personal Data, other than with respect to a breach described in Section 10.01;

(b)     any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Provider's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;

(c)     allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under this Agreement; or

negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.

Section 10.03         Indemnification Procedure. Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified under Section 10.01 or Section 10.02, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defence and investigation of such action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 10.03 will not relieve the Indemnitor of its obligations under this Article X except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

Section 10.04         Mitigation. If any of the Services, Software or Documentation are, or in Provider's opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party intellectual property right, or if Customer's or any Authorized User’s use of the Services, Software or Documentation is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:

(a)     obtain the right for Customer to continue to use the Services, Software or Documentation as contemplated by this Agreement;

(b)     modify or replace the Services, Software or Documentation, in whole or in part, to seek to make the Services, Software or Documentation (as so modified or replaced) non-infringing, while providing equivalent features and functionality, in which case such modifications or replacements will constitute Services, Software or Documentation, as applicable, under this Agreement; or

(c)     by written notice to Customer, terminate this Agreement with respect to all or part of the Services, Software or Documentation, and require Customer to immediately cease any use of the Services, Software or Documentation or any specified part or feature thereof.

Section 10.05         Sole Remedy. This Article X sets forth Customer’s sole remedies and Provider’s sole liability and obligation for any actual, threatened or alleged claims that this Agreement or any subject matter hereto (including the Services, Software or Documentation) infringes, misappropriates or otherwise violates any third party intellectual property right.

Article XI.             Confidentiality

Section 11.01         Definition. “Confidential Information” means any information disclosed by a party to the other party, directly or indirectly, which

(a)     if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,”

(b)     if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving party to be “confidential” or “proprietary” within thirty (30) days of such disclosure,

(c)     is specifically deemed to be confidential by the terms of this SaaS Agreement, or

(d)     reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself.

Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality. Subject to the display of Customer Content as contemplated by this SaaS Agreement, Customer Content is deemed Confidential Information of Customer. Services, Software and Documentation are deemed Confidential Information of Provider.

Section 11.02         Confidentiality. During the term of this SaaS Agreement and for 5 years thereafter, each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this SaaS Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party.

Section 11.03         Exceptions. Confidential Information excluded information that:

(a)     is known publicly at the time of the disclosure or becomes publicly known after disclosure through no fault of the receiving party,

(b)     is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or

(c)     is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party.

Section 11.04         Permitted Disclosures. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this SaaS Agreement and the relationship of the parties, but agrees that the specific terms of this SaaS Agreement will be treated as Confidential Information; provided, however, that each party may disclose terms of this SaaS Agreement to those that need to know under a duty of confidentiality such as accountants, lawyers, bankers, and investors.

Article XII.           General Provisions

Section 12.01         Non-Exclusive Service. Customer acknowledges that SaaS Services provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Provider’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties.

Section 12.02         Personal Data. Customer hereby acknowledges and agrees that Provider’s performance of this SaaS Agreement may require Provider to process, transmit, and/or store Customer Personal Data, which may include the Personal Data of the Customer employees and employees of Customer affiliates. By submitting Personal Data to Provider, Customer agrees that Provider and its affiliates may process, transmit and/or store Personal Data only to the extent necessary for, and for the sole purpose of, enabling Provider to perform its obligations under this SaaS Agreement. In relation to all Personal Data provided by or through the Customer to Provider, Customer will be responsible as sole Data Controller for complying with all applicable data protection or similar laws and regulations. Customer agrees to obtain all necessary consents as needed under applicable data protection laws and make all necessary disclosures before including Personal Data in Content and using the SaaS Services. Customer confirms that Customer is solely responsible for any Personal Data that may be contained in the Content, including information which any Authorized User shares with third parties on Customer’s behalf. Customer is solely responsible for determining the purposes and means of processing Personal Data by Provider under this SaaS Agreement, including that such processing according to Customer’s instructions will not place Provider in breach of applicable data protection laws. Prior to processing, Customer will inform Provider about any special categories of data contained within Customer Personal Data and any restrictions or special requirements in the processing of such special categories of data, including any cross border transfer restrictions. Customer is responsible for ensuring that the Services meet such restrictions or special requirements. Provider to process any Personal Data that meets the requirements set forth in this Section 12.02 according to these Terms of Use.

Section 12.03         Assignment. Neither party may assign this SaaS Agreement or any right under this SaaS Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign this SaaS Agreement to an acquirer of all or substantially all of the business of such party to which this SaaS Agreement relates, whether by merger, asset sale or otherwise. This SaaS Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its duties under this SaaS Agreement, provided, however, that such party shall not be relieved of any obligation under this SaaS Agreement.

Section 12.04         Notices. Except as otherwise permitted in this SaaS Agreement, notices under this SaaS Agreement shall be in writing and shall be deemed to have given:

(a)     five (5) business days after mailing if sent by registered or certified U.S. mail;

(b)     when transmitted by electronic email, provided that a copy of the notice is promptly sent by other means specified in this Section 12.04; or

(c)     when delivered if delivered personally or sent by express courier service. All notices shall be sent to the other party at the address set forth in the SaaS Agreement or in the Schedule (Services and Fees).

Section 12.05         Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.

Section 12.06         Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this SaaS Agreement shall not constitute a waiver of any other or subsequent breach.

Section 12.07         Severability. If any term of this SaaS Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this SaaS Agreement shall remain in full force.

Section 12.08         Entire SaaS Agreement. This SaaS Agreement (including all Schedules and Exhibits) contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject of matter of this SaaS Agreement. This SaaS Agreement may be amended solely in a writing signed by both parties. Standard or printed terms contained in any purchase order or sales confirmation are deemed rejected and shall be void unless specifically accepted in writing by the party against whom the enforcement is sought; mere commencement of work or payment against such forms shall not be deemed acceptance of those terms.

Section 12.09         Survival. Article III, Article VI, and Article VIII through Article XII of this SaaS Agreement shall survive the expiration or termination of this SaaS Agreement for any reason.

Section 12.10         Publicity. Provider may include Customer’s name and logo in its customer lists and on its website. Upon signing, Provider may issue a high-level press release announcing the relationship and the manner in which Customer will use Provider solution. Provider shall coordinate its efforts with appropriate communications personnel in Customer’s organization to secure approval of the press release if necessary.

Section 12.11         Export Regulations. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the SaaS Services. Customer agrees that such export control laws govern its use of the Services, and Customer agrees to comply with all such export laws and regulations. Customer agrees that no Services, Software or Documentation will be exported, directly or indirectly, in violation of these laws.

Section 12.12         No Third Party Beneficiaries. This SaaS Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity.

Section 12.13         Independent Contractor. The parties have status of independent contractors, and nothing in this SaaS Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided this SaaS Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.

Section 12.14         Statistical Information. Provider may anonymously compile statistical information related to the performance of the Services for the purposes of improving the SaaS Service, provided that such information does not identify Customer’s data or include Customer’s name.

Section 12.15         Governing Law. This SaaS Agreement and all Exhibits and Schedules attached hereto and all matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the province of Ontario and the federal laws of Canada applicable therein. Any action arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the courts of the province of Ontario, and each party irrevocably submits to the non-exclusive jurisdiction of such courts in any such action. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any action brought in any such court. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.

Section 12.16         Compliance with Laws. Provider shall comply with all applicable local, state, national and foreign laws in connection with the delivery of the Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data.

Section 12.17         Dispute Resolution. Customer’s satisfaction is an important objective to Provider in performing its obligations under this SaaS Agreement. Except with respect to intellectual property rights, if a dispute arises between parties relating to the interpretation or performance of this SaaS Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within fifteen (15) days after such meeting, the parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to it.

Section 12.18         Fair Credit Reporting Act (USA). Customer acknowledges and agrees that Provider is not a “Consumer Reporting Agency” (“CRA”) as defined in the United States of America Fair Credit Reporting Act, 15 U.S.C. 1681 et seq., as amended (“FCRA”), and Customer accepts any and all of the legal responsibilities of being a CRA and shall hold harmless and indemnify the Provider from all CRA obligations under FCRA.

EXHIBIT A

  1. Support and Maintenance Services:

Support and Maintenance Services are included in the SaaS Agreement and entitle the Customer to the following:

  • Telephone or electronic support in order to help Customer locate and correct Problems.

  • Bug fixes and code corrections to correct SaaS Service malfunctions in order to bring such Services into substantial conformity with the operating specifications.

  • All extensions, enhancements and other changes that Provider, at its sole discretion, makes or adds to the Services and which Provider furnishes, without charge, to all other subscribers of the SaaS Service.

  • Up to two (2) dedicated contacts designated by Customer in writing that will have access to Support Services.

  1. Response and Resolution Goals:

  • “Business Hours” are defined as 9am-5pm EST, Monday through Friday, except holidays.

  • “Fix” means the repair of Services component to remedy Problem.

  • “Problem” means a defect in the Services as defined by normal or expected operation of Services.

  • “Respond” means acknowledgement of Problem received.

  • “Workaround” means suitable process provided to Customer to avoid Problem without substantially impairing Customer’s use of the SaaS Services.

Problem Severity

Response Goals

Resolution Goals

SaaS Services are unavailable or in a state that substantially impact the Customer’s operations.

Provider will Respond within 2 business hours.

Upon confirmation of receipt from Customer, Provider will begin continuous work on the Problem. Every reasonable effort will be made to provide Fix or Workaround within 24 hours once the Problem is reproducible or once Provider has identified the root cause. Provider may incorporate Fix in future update or release to Software.

SaaS Services are moderately affected. There is no Workaround currently available or the Workaround is cumbersome to use.

Provider will Respond within 4 business hours.

Upon confirmation of receipt from Customer, Provider will provide reasonable effort for Workaround or Fix within 7 business days once the Problem is reproducible. Provider may incorporate Fix in future update or release to Software.

SaaS Services issue is not critical: issue has been identified but does not hinder normal operation, or the Problem may be temporarily circumvented using an available Workaround.

Provider will Respond within 1 business day.

Upon confirmation of receipt from Customer, Provider will provide reasonable effort for Workaround or Fix within 14 business days once the Problem is reproducible. Provider may incorporate Fix in future update or release to Software.

Non-critical issues, general questions, enhancement requests, or functionality does not match documented specifications.

Provider will Respond within 2 business days.

Resolution of Problem may appear in future release to Software.

  1. Accessing Support:

Provider offers several ways to resolve any technical difficulties.

The online self-service support center made available 24x7 via the Software, which can be accessed by clicking the “Help” option when logged into the Autohost Portal or by visiting the help website directly (https://help.autohost.ai/knowledge). Topics for assistance include the following key areas:

  • Getting Started

  • Training Materials

  • Settings and Preferences

  • Interpreting Results

  • Best Practices

The support email address is support@autohost.ai.