Software as a Service Agreement for Visitor Aware
PLEASE READ THIS AGREEMENT BEFORE USING THE VISITOR AWARE SERVICES. BY ACCESSING OR USING VISITOR AWARE VISITOR MANAGEMENT SOFTWARE AS A SERVICE OFFERING (“SaaS”), YOU (“the Customer”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SaaS SERVICES. IF THE PARTIES HAVE A FULLY EXECUTED AGREEMENT THAT EXPRESSLY GOVERNS ORDERS FOR VISITOR AWARE SOFTWARE AS A SERVICE OFFERING, SUCH AGREEMENT SHALL SUPERSEDE THIS AGREEMENT.
This Software as a Service Agreement (“SaaS Agreement”) is entered into between Customer (“Customer” or “Client” or “Subscriber” or “Party”) and Singlewire Software, LLC., a Wisconsin limited liability company (“Singlewire”). Singlewire and the Customer agree that the following terms and conditions will apply to the services provided under this SaaS Agreement and any Order placed thereunder.
The parties hereby agree to the following terms:
1. CONTRACT PERIOD
This Agreement is effective when signed by Customer and Singlewire representatives (“Effective Date”) Initial term of this Agreement is One Year starting from the Effective Date. This Agreement shall automatically renew for additional terms of one (1) year each unless either Party shall give notice of cancellation at least sixty (60) days prior to the expiration of the original term or any renewal thereof. If Customer terminates this Agreement or elects to reduce the number of Customer’s authorized end locations (“Locations”) of the Licensed Material, then, in addition to amounts due for use of the Licensed Material and Support Services actually rendered prior to the termination of this Agreement or reduction of Locations, there shall be immediately due and payable by Customer an amount equal to the 50% of the fees that would have been paid the remainder of the term but for the termination or reduction of Locations, as the case may be.
2. FINANCIAL TERMS
Invoicing and Payment. Unless otherwise provided in the Schedule, Singlewire shall invoice Customer for all fees on the Schedule effective date. Service will not start until the payment is received. Customer shall pay all undisputed invoices within 30 days after 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 Customer to Singlewire in United States Dollars. The Subscription Term of the SaaS Services as defined in the subsequent Schedule will auto-renew for an additional 12-month term unless the Subscription Term is cancelled by either party at least sixty (60) days prior to the end of the initial Subscription Term.
Suspension for Non-Payment. Singlewire reserves the right to suspend delivery of the SaaS Services if Customer fails to timely pay any undisputed amounts due to Singlewire under this SaaS Agreement, but only after Singlewire notifies Customer of such failure and such failure continues for thirty (30) days or more after the payment due date. Suspension of the SaaS Services shall not release Customer of its payment obligations under this SaaS Agreement. Customer agrees that Singlewire 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 Customer’s nonpayment.
Pricing Changes. Customers selecting annual pricing will receive notice of changes in pricing at least 30 days before each anniversary of the Effective Date. Customers selecting monthly pricing will receive notice of changes in pricing at least 30 days before the month in which the change in pricing will take effect.
3. REPRESENTATIONS AND WARRANTIES
General. Each Party represents and warrants that it has the right and authority to enter into this Agreement, and that by entering into this Agreement, it will not violate, conflict with or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which it is a party or by which it or any of its property is or may become subject or bound.
Compliance with the Laws. Each Party represents and warrants that no consent, approval or authorization of or designation, declaration or filing with any governmental authority is required in connection with the valid execution, delivery, and performance of this Agreement. Each Party shall, at its own expense, comply with all laws, regulations and other legal requirements that apply to it and this Agreement, including copyright, privacy and communications decency laws.
Acceptable Use. Customer is solely responsible for the content of any postings, data, or transmissions using the Services, or any other use of the Services by Customer or by any person or entity Customer permits to access the Services. Customer represents and warrants that it will: (a) not use the Services in a manner that: (i) is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; or (ii) will disrupt a third parties’ similar use or Licensed Materials ; (b) not violate or tamper with the security of any Singlewire computer equipment or program;. If Singlewire has reasonable grounds to believe that Customer is utilizing the Services for any such illegal or disruptive purpose Singlewire may suspend the Services immediately with or without notice to Customer. Singlewire may terminate the Agreement as contemplated in Section 11 if Customer in fact fails to adhere to the foregoing acceptable use standards.
SINGLEWIRE WARRANTS THAT THE SAAS SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION. SINGLEWIRE DOES NOT GUARANTEE THAT THE SAAS SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT SINGLEWIRE WILL CORRECT ALL SAAS SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT SINGLEWIRE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SAAS SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY SINGLEWIRE (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS SAAS AGREEMENT. NEITHER SINGLEWIRE NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SAAS SERVICES WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL SINGLEWIRE OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR ANY USER’S DATA, FILES, OR PROGRAMS.
NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF SINGLEWIRE SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS SAAS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS SAAS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS SAAS AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE.
4. LIMITATION OF LIABILITY
Excluding the liability under the section entitled “No Infringement” below, UNDER NO CIRCUMSTANCES WILL SINGLEWIRE OR ANYONE ELSE INVOLVED IN ADMINISTERING, DISTRIBUTING OR PROVIDING THE SERVICES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS, OR DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SINGLEWIRE’S RECORDS, PROGRAMS OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF ANY BREACH BY SINGLEWIRE OF THIS AGREEMENT, SINGLEWIRE’S LIABILITY TO CUSTOMER WILL NOT EXCEED THE AMOUNT PAID TO SINGLEWIRE BY CUSTOMER DURING THE PREVIOUS THREE MONTHS.
No Infringement: Singlewire warrants the Licensed Material will not infringe any patent, trademarks, copyright or any proprietary rights of a third party or constitute a misuse or misappropriation of a trade secret. Customer shall notify Singlewire promptly in writing of any known action brought against Customer based on an allegation that Customer’s use of any materials infringes any patent, trademark, copyright, or infringes any right of a third party, or constitutes misuse or misappropriation of a trade secret (“Infringement”). Singlewire will defend, indemnify and hold Customer harmless from any such action at Singlewire’s sole expense, provided that Singlewire shall have the sole control of the defense of any such action, all negotiations and/or its settlement, and Customer reasonably cooperates with Singlewire in such defense. In the event that a final injunction is obtained against Customer’s use of the Services by reason of an Infringement or Customer is otherwise prohibited from using same, Singlewire shall to the extent possible and at its expense, within sixty (60) days, either (a) procure for Customer the right to continue to use the Services that are infringing, or (b) replace or modify the Services to make its use noninfringing while being capable of performing the same function. If neither option is available to Singlewire, then Customer, at Customer’s option, may terminate this Agreement without penalty or further payment other than payment of fees for use of the Services prior to said termination.
5. CONFIDENTIAL INFORMATION
Definition. For purposes of this Agreement “Confidential Information” shall mean information including, without limitation, all Customer data, computer programs, code, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information marked “Confidential”, or if disclosed verbally, is identified as confidential at the time of disclosure. In addition to the foregoing, Confidential Information shall include third party software, if any, that may be provided to Customer under this Agreement, including any related source or object codes, technical data, data output of such software, documentation, or correspondence owned by the applicable licensor.
Confidential Information excludes information that: (i) was or becomes publicly known through no fault of the receiving Party; (ii) was rightfully known or becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing Party; (iii) is independently developed by the receiving Party without the participation of individuals who have had access to the Confidential Information; (iv) is approved by the disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing Party; and (v) the receiving Party is legally compelled to disclose; provided, however, that prior to any such compelled disclosure, the receiving Party will (a) assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (b) cooperate fully with the disclosing Party 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. In the event that such protection against disclosure is not obtained, the receiving Party will be entitled to disclose the Confidential Information, but only as, and to the extent, necessary to legally comply with such compelled disclosure.
Nondisclosure. During this the term of this Agreement and for a period of 2 years thereafter, each Party agrees to maintain all Confidential Information in confidence to the same extent that it protects its own similar Confidential Information, but in no event using less than reasonable care, and to use such Confidential Information only as permitted under this Agreement; Each Party agrees to only disclose the other Party’s Confidential Information to its employees: (a) with a need to know to further permitted uses of such information; and (b) who are informed of the nondisclosure/ non-use obligations imposed by this Section 5. Both parties shall take steps each determines appropriate to implement and enforce such non-disclosure/non-use obligations.
Terms of Agreement Confidential. Each of the Parties agrees not to disclose to any third party the terms of this Agreement, including pricing, without the prior written consent of the other Party hereto, except to advisors, investors and others on a need-to-know basis under circumstances that reasonably ensure the confidentiality thereof, or to the extent required by law, including but not limited to public records laws.
Injunctive Relief. In the event of an actual or threatened breach of the above confidentiality provisions, the non-breaching Party will have no adequate remedy at law and will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
6. CUSTOMER RESPONSIBILITY
Customer is solely responsible for the content of communications transmitted by Customer using the Services, and shall defend, indemnify and hold harmless Singlewire from and against all liabilities and costs (including reasonable attorneys’ fees) arising from any and all third-party claims by any person based upon the content of any such communications.
Customer is not permitted to resell the Services.
Customer shall use the Services only for lawful purposes. To the extent deemed necessary by Customer, Customer shall implement security procedures necessary to limit access to the Services to Customer’s authorized users and shall maintain a procedure external to the Services for reconstruction of lost or altered files, data or programs.
Customer is responsible for establishing designated points of contact to interface with Singlewire.
System Administrator; User Access. Customer shall designate one or more System Administrators. System Administrators shall be responsible for managing User access, including adding and subtracting Users. The System Administrator shall ensure that multiple Users do not share a password or user name. Customer acknowledges and agrees that it is prohibited from sharing passwords and/or user names with unauthorized users.
Security. Customer is solely responsible for maintaining the security of all user names and passwords granted to it, for the security of its information systems used to access the System, and for its Users’ compliance with the terms of this Agreement. Singlewire will act as though any electronic communications it receives under Customer’s user names have been sent by Customer. Customer will immediately notify Singlewire if it becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords or user names. Singlewire has the right at any time to terminate or suspend access to any User or to Customer if Singlewire believes in good faith that such termination or suspension is necessary to preserve the security, integrity, or accessibility of the System or Singlewire’s network.
Use Rights. During the term and subject to the terms of this Agreement, Singlewire hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right to permit Customer’s Users to use the System for Customer’s business purposes. The use right in the preceding sentence is limited to use by the number of Locations for which Customer has paid. Said use rights are non-transferable, except in the event of a voluntary transfer of substantially all assets by Customer to a transferee which executes Singlewire’s form of agreement agreeing to be bound by all of the terms and conditions of this Agreement. All rights in and to the System not expressly granted herein are reserved to Singlewire. Said use rights are non-transferable. Customer agrees to use commercially reasonable efforts to ensure that its employees and users of all Licensed Material hereunder comply with the terms and conditions set out in this Agreement.
Suggestions. Singlewire shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the SaaS Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the SaaS Services.
License and Use Restrictions. Customer shall not, directly, indirectly, alone, or with another party, (i) copy, disassemble, reverse engineer, or decompile the System; (ii) modify, create derivative works based upon, or translate the System; (iii) license, sell, rent, lease, transfer, grant any rights in or otherwise commercially exploit the System in any form to any other party, nor shall Customer attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder. You acknowledge and agree that Singlewire shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the System and any suggestions, enhancement requests, feedback, recommendations or other information provided by Customer or any of Customer’s Users relating to the System.
8. CUSTOMER DATA
All data is owned by Customer and is to be strictly held as confidential. Singlewire will delete and destroy all copies of data once the Agreement is terminated with or without default. Customer has the option to receive a backup of data prior to deletion per section 10. Singlewire shall not use the Customer Data except to improve the System and as necessary to perform its obligations hereunder.
All right, title and interest in and to the Licensed Material, and all copyrights, patents, trademarks, service marks or other intellectual property or proprietary rights relating thereto, belong exclusively to Singlewire. Any modification to the Software performed by Customer directly or indirectly extending the current capabilities shall be the property of Singlewire and all copyrights and other rights are hereby assigned to Singlewire.
Customer shall be solely responsible for the acts and omissions of its Users. Singlewire shall not be liable for any loss of data or functionality caused directly or indirectly by the Users.
Publicity. Singlewire may include Customer’s name and logo in its customer lists and on its website. Upon signing, Singlewire may issue a high-level press release announcing the relationship and the manner in which Customer will use the Singlewire solution. Singlewire shall coordinate its efforts with appropriate communications personnel in Customer’s organization to secure approval of the press release if necessary.
Statistical Information. Singlewire may anonymously compile statistical information related to the performance of the SaaS Services for purposes of improving the SaaS Services, provided that such information does not identify Customer’s data or include Customer’s name.
Singlewire shall deliver Updates to the System that apply to the Customer’s account at no additional charge. From time to time, new Components or features may be released that are applied selectively to different Editions of the System.
Updates apply to the following services:
- Administration Portal
- Kiosk Application
- APIs used for Kiosk Functionality
10. BACK-UP OF DATA
Singlewire will deliver a full digital backup of customer Data in .zip or other compressed format upon request.
11. TERMS AND TERMINATION
Term. The term of this Agreement commences on the Effective Date hereof. If Customer has selected an annual pricing plan, then the term will continue until the one year anniversary of the Effective Date, and will automatically renew for additional terms of one year each unless either party gives the other party written notice of its intention not to renew at least 60 days in advance of the then current term. If Customer has elected a monthly pricing plan, this agreement will continue until a party notifies the other party at least 30 days in advance of its intention to terminate.
Termination for Cause. Either party can terminate this Agreement for cause upon written notice to the other party:
- if a party fails to pay the other party any delinquent amounts owed to the other party hereunder within 10 days of written notice by the other party specifying the amounts owed; in the case of Singlewire, immediately upon any breach by Customer of Section 2(b) and/or Section 2(e) above;
- immediately upon any breach of any confidentiality obligations owed to such party by the other party;
- if the other party has committed any other material breach of its obligations under this Agreement and has failed to cure such breach within 30 days of written notice by the non-breaching party specifying in reasonable detail the nature of the breach (or, if such breach is not reasonably curable within 30 days, has failed to begin and continue to work diligently and in good faith to cure such breach);
- upon the institution of bankruptcy or state law insolvency proceedings against the other party, if such proceedings are not dismissed within 30 days of commencement; or
- if the Legislature fails to appropriate the funds necessary for Customer’s performance where applicable.
Obligations Upon Termination. Upon termination of this Agreement:
- provided that Customer has paid all amounts owed to Singlewire hereunder, Singlewire shall, upon written request received within 30 days of termination, provide any Customer who purchased access rights to an Edition requiring payment of a fee with access to the System for a period of 24 hours for the limited purpose of exporting Customer Data;
- Singlewire shall immediately terminate access to the System by Customer; and
- Customer shall immediately pay Singlewire any amounts payable or accrued but not yet payable to Singlewire, including any deferred payments or payments originally to be made over time.
CUSTOMER ACKNOWLEDGES THAT IF CUSTOMER IS USING AN EDITION OF THE SYSTEM THAT IS PROVIDED FREE OF CHARGE, UPON TERMINATION OF THIS AGREEMENT, SINGLEWIRE IS UNDER NO OBLIGATION TO EITHER MAINTAIN CUSTOMER DATA OR TO PROVIDE CUSTOMER WITH ACCESS TO OR A COPY OF THE CUSTOMER DATA.
12. GENERAL PROVISIONS & FORCE MAJEURE
1. This Agreement, including any amendments and attachments hereto that are incorporated herein, constitute the entire agreement between the parties and shall be binding on the parties when accepted by Customer. No modification, termination or waiver of any provisions of this Agreement shall be binding upon a Party unless in writing signed by an authorized officer of the relevant Party(ies). No provision of any purchase order or other document issued by Customer, which purports to alter, vary, modify or add to the provisions of this Agreement, shall be binding upon Singlewire or effective for any purpose, unless accepted by Singlewire in writing.
It is further expressly understood and agreed that, there being no expectations to the contrary between the parties, no usage of trade or other regular practice or method of dealing either within the computer software industry, Singlewire’s industry or between the parties shall be used to modify, interpret, supplement, or alter in any manner the express terms of this Agreement or any part there of.
2. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, or employment relationship between the parties, nor shall either Party have the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other.
3. Amendments. The parties can amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement.
4. The Licensed Materials shall not be exported or re-exported in violation of any export provisions of the United States or any other applicable jurisdiction.
5. This Agreement may not be assigned, sublicensed or transferred, in whole or in part, by the customer without the prior written consent of Singlewire. Any attempted assignment, subletting or transfer shall be void.
6. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
7. No delay or failure of Singlewire or Customer in exercising any right herein and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights herein. Any waiver by Singlewire or Customer of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent or other breach.
8. In the event that either Party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of god, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the affected Party or other causes beyond such Party’s reasonable control (a “Force Majeure Event”) the Party who has been so affected shall immediately give notice to the other Party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended. If the period of nonperformance exceeds seven (7) days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may by giving written notice immediately terminate this Agreement as provided in Section 11
9. On Singlewire’s request, no more frequently than annually, Customer shall furnish Singlewire with a signed certification (i) verifying that the Licensed Material is being used pursuant to the terms of this Agreement and (ii) listing the locations where the Licensed Material is being used (j) This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, and each of which together shall constitute a single instrument.
10. This Agreement shall be governed by and construed under the laws of the State of Wisconsin.
Confirmation below by your authorized representative is your consent to the terms and conditions of this Agreement.