SaaS Subscription Agreement

Posted: October 5, 2023
Effective: October 5, 2023

This SaaS Agreement (“Agreement”) is entered into by and between UNTU Incorporated set forth below (“Company”) and the entity or person placing an order for or accessing any Services (“Customer” or “you”). 

This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Company pursuant to any Company ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Form(s)”) and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement will govern Customer’s initial purchase on the date set forth in the applicable Order Form (the “Effective Date”) as well as any future purchases made by Customer that reference this Agreement. Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”).

Modifications to this Agreement: From time to time, Company may modify this Agreement by providing notice to Customer (including by posting such updates on the Service website). Unless otherwise specified by Company, changes become effective for Customer upon renewal of Customer’s current Subscription Term or entry into a new Order Form. Company will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email or other means. Continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version. If the Customer objects to such changes, prior to the start of the next Subscription Term, Customer may notify Company of its desire to not renew the Agreement and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the not yet started portion of the Subscription Term.

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.

  1. SAAS SERVICES
    1. Subject to the terms of this Agreement and during the Subscription Term specified in an applicable Order Form, Company will use commercially reasonable efforts to provide Customer the Services in accordance with this Agreement and the Service Level Terms at Schedule 1. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account.
    2. If Customer receives free access or a trial or evaluation subscription to the Service (a “Trial Subscription“), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of seven (7) days or such other period granted by Company (the “Trial Period“). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Period. Company has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COMPANY WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.

  2. RESTRICTIONS AND RESPONSIBILITIES
    1. Customer will not (a) use the Services in excess of the scope of use specified in an applicable Order Form, or (b) directly or indirectly: reverse engineer the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software; (c) use the Services or any Software for timesharing or service bureau purposes; or (d) remove any proprietary notices or labels.

    2. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services (including but not limited to content Customer uses in conjunction with the Services). Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be in violation of the foregoing.

    3. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”) Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

    4. The Service is subject to the scope of use specified in the applicable Order Form. Customer agrees that it is solely responsible for the nature and content of all materials, works, data, statements, and other visual, graphical, video, written or audible communications of any nature submitted by Customer or otherwise used through its Account. Customer agrees not to use or permit the use of the Service: (a) to communicate any message or material that is defamatory, harassing, libellous, threatening, or obscene; (b) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (c) in any manner that is likely to damage, disable, overburden, or impair the Service or interfere in any way with the use or enjoyment of the Service by others; (d) to introduce any Malware or other malicious activity in Customer’s use of the Service; (e) in violation of any export law or regulation; or (f) in any way that constitutes or encourages conduct that could constitute a criminal offence.

    5. Each party acknowledges it is responsible to comply with all applicable requirements of the General Data Protection Regulation (GDPR) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time. The parties acknowledge that:

      1. If the Company processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the Customer is the data controller and the Company is the data processor for the purposes of the GDPR;
      2. The Data Processing Terms available at https://untu.biz/dpa, as they may be updated from time to time, sets out the parties’ obligations under the GDPR; and
      3. The personal data may be transferred or stored outside the EU or the country where the Customer and the authorized users are located in order to carry out the Service and the Company’s other obligations under this Agreement.

    6. Company may at any time suspend any use of the Service and/or remove or disable any content as to which Company reasonably and in good faith believes is in violation of this Agreement. Company agrees to provide Customer with notice of any such suspension or disablement before its implementation unless such suspension or disablement is necessary to comply with legal process, regulation, order or prevent imminent harm to the Service or any third party, in which case Company will notify Customer to the extent allowed by applicable law of such suspension or disablement as soon as reasonably practicable thereafter.

  3. CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS.
    1. Either party has disclosed, or may disclose, business, technical or financial information relating to its business (“Confidential Information”). Confidential Information of Company includes non-public information regarding features, functionality and performance of the Service. Confidential Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). A party receiving confidential information (“Receiving Party”) from the party disclosing Confidential Information (“Disclosing Party”) agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use (except in performance of the Services or as otherwise permitted in this Agreement) or divulge to any third person any such Confidential Information. The obligations of confidentiality stated in this section shall survive for five (5) years from the last date Customer uses the Service.

    2. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that: (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required to be disclosed by law.

    3. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (a) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and have made a reasonable effort to obtain a protective order; or (b) to establish a party’s rights under this Agreement, including to make required court filings; or (c) in confidence, to legal counsel, consultants, accountants, banks, and financing sources, and their advisors; (d) to respond to due diligence requests in connection with an actual or proposed merger, acquisition, or similar transaction (but only with respect to the terms and conditions of this Agreement); or (e) to respond to an emergency which Company believes in the good faith should be disclosed to assist in preventing the death or serious bodily injury of any person or material damage to property.

    4. Company shall own and retain all right, title and interest in and to (a) the Services and Software, including all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services, and (c) all intellectual property rights related to any of the foregoing.

    5. Notwithstanding anything else in this Agreement, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and development of related systems and technologies.

  4. PAYMENT OF FEES
    1. Customer will pay Company the fees specified in the applicable Order Form (the “Fees”). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.

    2. Fees are due and payable thirty (30) days after the date of the invoice, unless (a) Customer is paying via Credit Card or (b) otherwise specified in the applicable Order Form. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than taxes based on Company’s net income. All fees are non-cancelable and non-refundable, except where expressly set forth in Section 7 (IP Indemnification).

    3. If Customer is paying via Credit Card, and agreeing to purchase any Services, Customer hereby authorizes Company (or its designee) to automatically charge Customer’s Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all fees in accordance with the applicable Order Form. Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer’s use of the Services and may include subscription fees for the remainder of Customer’s applicable billing period and overage fees for the prior month.

  5. RENEWALS, TERM AND TERMINATION
    1. Subject to earlier termination as provided below, this Agreement is effective as of the Effective Date. It shall remain in effect unless terminated; provided that this Agreement shall automatically terminate upon the earlier of (a) the termination or expiration of all Subscription Terms or (b) termination as provided in Section 5.2 below. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for the period of the initial Subscription Term specified on the order form unless either party gives the other written notice of termination before the expiration of the then-current Subscription Term.

    2. Either party may terminate this if the other party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured following thirty (30) days written notice to the other party. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

  6. WARRANTY AND DISCLAIMER

     Company warrants that the Services will be delivered in a professional manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall make reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

  7. IP INDEMNIFICATION
    1. Company will defend Customer against any third party claim that the Service infringes a patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Customer’s actions) (“Claim Against Customer“), and will indemnify Customer for the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement. To the extent permitted by law, Company will have no liability to Customer under this Section 7.1 for any Claim Against Customer that arises out of: (a) any unauthorized use, reproduction, or distribution of the Service by Customer; (b) use of the Service in combination with any other software or equipment not supported by Company; or (c) any modification or alteration of the Service by anyone other than Company without the written approval of Company. In the event of a Claim Against Customer pursuant to this Section 7.1, Company may (at Company’s option and expense): (i) obtain for Customer the right to continue using the Service; (ii) modify the Service to make it non-infringing; or (iii) if subsections (i) and (ii) are not commercially viable (as determined by Company in its sole discretion), terminate this Agreement and refund Customer on a pro-rated basis any Fees pre-paid to Company for the corresponding unused period of the Service.

    2. As a condition of receiving an indemnification under this Agreement, Customer will provide Company with (i) prompt written notice of the claim; (ii) complete control over the defense and settlement of the claim (provided, that the Company will not settle any claim without the Customer’s prior written permission, which will not be unreasonably withheld, delayed or conditioned, in the event the settlement fails to unconditionally release the Customer from all liability pertaining to such claim); and (iii) such assistance in connection with the defense and settlement of the claim, at the Customer’s expense, as the Company may reasonably request.

  8. LIMITATION OF LIABILITY

     NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  9. PUBLICITY
    1. Press Releases. Neither party will issue any press release or similar publicity regarding the parties’ relationship under this Agreement without the other’s written approval.
    2. Identification of Customer. Company may identify Customer, by name and by logo, as a customer of the Services on Company’s website and other marketing materials.
    3. Case Study. Provided that Customer is satisfied with the Services, Company may develop a case study for public dissemination and marketing use by Company describing the benefits Customer has derived from the Services. Customer will reasonably cooperate with such a case study. Publishing shall be subject to Customer’s prior written approval, not to be unreasonably withheld.

  10. MISCELLANEOUS
    1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain effect and enforceable. Neither party shall be liable to the other for any delay or failure to perform any of the obligations set forth under this Agreement due to any act of God and/or force majeure causes beyond its reasonable control, including but not limited to hurricane, fire, flood, earthquake, terrorism or similar acts. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

    2. If you are a person and reside in or are a company and are incorporated in the United States or Canada, this Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Any disputes hereunder will be resolved via binding arbitration in San Francisco, California under the rules of the American Arbitration Association. Otherwise, any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Singapore, using the English language in accordance with the Singapore International Arbitration Centre then in effect, by one or three commercial arbitrators with substantial experience in resolving intellectual property and commercial contract disputes, who shall be in accordance with said rules. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right at any time to institute an action in any court of proper jurisdiction for injunctive or other equitable relief.

Schedule 1

Service Level Terms (applies to Enterprise plan only)

Service Availability

The Services shall be available 99.9%, measured monthly, excluding holidays 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 or other reasons beyond Company’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Company will credit Customer 5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours 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. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.

The scheduled time for maintenance is 9 p.m. to 3 a.m. PST/PDT, and may be used by Company with no advance notification to Customer. Company may expand these scheduled times provided that Company notifies Customer at least one day in advance. In addition, in the event that Company in its sole discretion determines that any unscheduled maintenance is necessary, Company will use commercially reasonable efforts to notify Customer.

The rights and remedies granted under this SLA apply to Customer only if Customer is a current subscriber of the Services. This SLA describes Customer’s sole remedy, and Company’s entire obligation, if it fails to satisfy its uptime guarantee. This SLA does not diminish or override the disclaimer of warranties in the Agreement to which this SLA is attached (except as expressly stated therein).