SOFTWARE-AS-A-SERVICE (SAAS) TERMS OF USE
PLEASE READ CAREFULLY: IF YOU ARE ACCEPTING THIS SOFTWARE-AS-A-SERVICE TERMS OF USE (“AGREEMENT”) ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (“CUSTOMER”), YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. UNLESS THE CUSTOMER HAS ANOTHER VALID AGREEMENT FOR THE PURCHASE AND USE OF OWNLOCAL, INC. (“OWNLOCAL”) PRODUCTS (AS DEFINED BELOW), THIS AGREEMENT GOVERNS YOUR RIGHTS TO THE OWNLOCAL PRODUCTS. BY EXECUTING THE RESELLER AGREEMENT THE CUSTOMER ACCEPTS THIS AGREEMENT AND THE AGREEMENT WILL BE DEEMED A BINDING CONTRACT BETWEEN OWNLOCAL AND CUSTOMER. IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT OR IF YOU DO NOT HAVE AUTHORITY TO BIND THE CUSTOMER, THEN DO NOT EXECUTE THE RESELLER AGREEMENT.
This Agreement is entered into as of the earliest of the date that Customer accepts the terms and conditions herein and executed on the Reseller Agreement, the date set forth on an Order, or the date on which Customer downloads, installs, activates or uses the Software.
1.1 “Affiliate” means any entity controlling, controlled by or under common control with Customer, where “control” means (i) a general partnership interest in a partnership; or (ii) the beneficial ownership of a majority of the outstanding equity entitled to vote for directors.
1.2 “Documentation” means the written and/or electronic release notes, implementation guides, or other published technical documentation about the applicable SaaS Product that is provided by OWNLOCAL to Customer together with access to the SaaS Product.
1.3 “License Term” means the term of the access rights granted for the SaaS Product, as identified in the relevant Order, starting when OWNLOCAL delivers to Customer the relevant credentials to access and use the SaaS Product.
1.4 “Order” means any purchase order, product schedule or ordering document between Customer and authorized reseller or between Customer and OWNLOCAL (if purchasing directly) that identifies the products and/or services licensed or sold and any applicable licensing parameters (e.g.,the number of licenses).
1.5 “SaaS Product” means the enterprise services management made available by access to and use of software hosted by OWNLOCAL to which Customer has purchased a license under the relevant Order. References in this Agreement to the SaaS Product shall include the Software.
1.6 “Software” means the object code version of OWNLOCAL proprietary computer programs made available by OWNLOCAL for download by Customer for use in connection with any SaaS Product, including any Documentation and Updates.
1.7 “Updates” means any correction, update, upgrade, patch, or other modification or addition made by OWNLOCAL to specific Software.
2.1. Access and Use. Subject to the terms and conditions of this Agreement, during the applicable License Term, OWNLOCAL hereby grants to Customer a non-exclusive, non-transferable and non-sublicensable license for Customer to access and use the SaaS Product solely for Customer’s internal use with Customer’s ordinary business operations and in accordance with the applicable Documentation. Customer may provide access to the SaaS Product to its and its Affiliates’ employees, contractors, and other individual users to access and use the SaaS Products on its behalf and for its internal business purposes in compliance with this Agreement, provided Customer is responsible for all such users’ actions that violate the terms of this Agreement, any breach by any such user is a breach by Customer. Customer agrees that its purchase of the Software is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by OWNLOCAL with respect to future functionality or features.
5.1. Definition. “Confidential Information” means non-public information provided by one party (“Discloser”) to the other (“Recipient”) that is designated as confidential or reasonably should be considered as such, excluding information that (i) is or becomes public through no fault of the Recipient, (ii) was known to Recipient before the disclosure, (iii) is disclosed to Recipient by a third party without violation of any confidentiality restrictions, or (iv) is independently developed by the Recipient without access to or use of the Discloser’s information. OWNLOCAL Confidential Information includes but is not limited to all SaaS Products (and any derivatives, performance data, benchmark results, security assessments, product roadmaps and any other technical information relating to the SaaS Products), Documentation and its derivatives, and OWNLOCAL’s pricing. The terms and conditions of this Agreement are the Confidential Information of both parties.
5.2. Non-disclosure and Non-Use. The Recipient shall (i) only use the Confidential Information of the Discloser to exercise its rights and/or to perform under this Agreement, (ii) use the same degree of care to prevent unauthorized use and disclosure of Discloser’s Confidential Information as it does for its own confidential information, but in no event less than reasonable care, and (iii) with respect to employees, contractors, or agents of Recipient, limit access to the Discloser’s Confidential Information only to those employees, contractors, or agents who have a need to access such Confidential Information and who are subject to confidentiality obligations at least as restrictive as those specified in this Section 5. The Recipient may disclose the Discloser’s Confidential Information to the extent required by any court, governmental body, or law or regulation, provided that, if legally permissible, Recipient shall provide prompt written notice to the Discloser of such disclosure. Upon written request of the Discloser, the Recipient shall return or destroy, at Discloser’s option, the Discloser’s Confidential Information.
7.1. Indemnification by OWNLOCAL. OWNLOCAL shall at its cost and expense (i) defend or settle any claim brought against Customer and its directors, officers and employees (“Customer Indemnitee(s)”) by an unaffiliated third party alleging that Customer’s use of the SaaS Product infringes or violates that third party’s intellectual property right(s), and (ii) pay, indemnify and hold Customer Indemnitees harmless from any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim.
7.2. Remedies. If a claim under Section 7.a occurs or in OWNLOCAL’s opinion is reasonably likely to occur, OWNLOCAL may at its expense and sole discretion: (i) procure the right to allow Customer to continue using the applicable SaaS Product, (ii) modify or replace the applicable SaaS Product to become non-infringing, or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer’s license to the affected portion of applicable SaaS Product and refund a portion of the pre-paid, unused license fees paid by Customer corresponding to such SaaS Product.
7.3. Exclusions. OWNLOCAL shall have no obligations under this Section 7 if the claim is based upon or arises out of: (i) any modification to the applicable SaaS Product not made by or at the direction of OWNLOCAL, (ii) any combination or use of the applicable SaaS Product with any third party equipment, products or systems, to the extent that such claim is based on such combination or use, (iii) Customer’s continued use of the allegedly infringing technology after being notified of the infringement claim, (iv) Customer’s failure to use Updates made available by OWNLOCAL, (v) Customer’s failure to use the SaaS Product in accordance with the applicable Documentation, and/or (vi) use of the SaaS Product outside the scope of the license granted under this Agreement. This Section 7 constitutes Customer’s sole and exclusive remedies, and OWNLOCAL’s entire liability, with respect to infringement of third party intellectual property rights.
7.4. Indemnification by Customer. Customer shall at its cost and expense (i) defend or settle any claim brought against OWNLOCAL and its directors, officers and employees (“OWNLOCAL Indemnitee(s)”) by an unaffiliated third party alleging that the Customer Data infringes or violates a third party’s intellectual property or privacy right(s), and (ii) pay, indemnify and hold OWNLOCAL Indemnitees harmless from any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim. “Customer Data” means any data originated by Customer or Customer Representatives that Customer or Customer Representatives submit to the SaaS Product.
7.5. Procedures. Each indemnitor’s indemnification obligation is conditioned on the indemnitee: (i) giving the indemnitor prompt written notice of such claim, (ii) permitting the indemnitor to solely control and direct the defense or settlement of such claim, provided the indemnitor shall not settle any claim in a manner that requires the indemnitee to admit liability or pay money without the indemnitee’s prior written consent, and (iii) providing the indemnitor all reasonable assistance in connection with the defense or settlement of such claim, at the indemnitor’s cost and expense.
8.1. Support and Maintenance Services. OWNLOCAL shall provide Customer with telephone and email technical support during OWNLOCAL’s normal business hours, Monday through Friday excluding holidays.
8.2. Third Party Services. The Software may contain features designed to interface with applications or services provided or made available by third parties (“Third Party Services”). In order to use a feature in connection with a Third Party Service, Customer must have a license from the provider of the relevant Third Party Service. If the Third Party Services are no longer available or if the applicable third party provider no longer allows the Third Party Services to interface with the Software, then such features will no longer be available or function in the Software. OWNLOCAL and the provider of the applicable Third Party Service disclaim all warranties, indemnities, obligations, and other liabilities in connection with any interface or integration with the Third Party Service. Further, OWNLOCAL disclaims all warranties, indemnities, obligations, and other liabilities in connection with any Third Party Service.
9.1. SaaS Product. OWNLOCAL represents and warrants to Customer that the SaaS Product materially conforms to the specifications specified in the relevant Documentation. Customer must notify OWNLOCAL of any warranty deficiencies within thirty (30) days from the provision of the deficient SaaS Product. Customer’s sole and exclusive remedy and the entire liability of OWNLOCAL for OWNLOCAL’s breach of this warranty will be for OWNLOCAL, at its option, to (i) repair such SaaS Product (and/or deliver new applicable Software) or (ii) terminate the applicable License Term and refund any prepaid, unused subscription fees paid to OWNLOCAL for the unused period of any such terminated License Term.
9.2. Professional Services. Customer may order OWNLOCAL professional services from any authorized reseller or directly from OWNLOCAL. Such professional services shall be subject to the terms and conditions of this Agreement and mutually agreed-upon statement of work (if any). For ninety (90) days following the date of delivery of any professional service by OWNLOCAL to Customer, OWNLOCAL represents and warrants that such professional services shall be professional, workman-like and performed in a manner conforming to generally accepted industry standards and practices for similar services. Customer’s sole and exclusive remedy and the entire liability of OWNLOCAL for OWNLOCAL’s breach of this warranty will be for OWNLOCAL, at its option, to re-perform the non-conforming services or refund the fees paid for such non-conforming professional services.
9.3. Exclusions. The express warranties do not apply if the applicable SaaS Product or hardware (i) has been modified, except by or at the direction of OWNLOCAL, (ii) has not been installed, used, or maintained in accordance with this Agreement and Documentation, (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence or accident, and/or (iv) is used with equipment, products or systems not specified in the Documentation. Additionally, these warranties only apply if notice of a warranty claim is provided within the applicable warranty period.
9.4. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS SECTION 9, THE SAAS PRODUCT, HARDWARE, AND SERVICES ARE PROVIDED “AS IS,” AND OWNLOCAL PROVIDES NO OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND OWNLOCAL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
12.1. Export/Import. The SaaS Product and Documentation may be subject to U.S. and foreign import and export control laws and regulations. Customer agrees to comply with all such regulations applicable to Customer, including obtaining applicable import licenses.
12.2. U.S. Government End Users. The SaaS Product and Documentation are “commercial items,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R.227.7202-1 through 227.729204, the SaaS Product and Documentation are being licensed to U.S. Government end users only as “commercial items” and with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
12.3. In-Licensed Materials and Open Source. The SaaS Product may contain or may operate with software services or other technology that is not owned by OWNLOCAL but has been licensed to OWNLOCAL by a third party and is necessary for the normal operation of the Software (“In-Licensed Materials”) or that is available under open source or free software licenses. The In-Licensed Materials may be subject to additional terms and conditions, as identified on http://www.OWNLOCAL.com/legal/thirdpartyterms or as otherwise made available to Customer. Such terms and conditions are incorporated by reference herein. To the extent OWNLOCAL uses open source software in the Software, the terms and restrictions set forth herein shall not prevent or restrict Customer from exercising additional or different rights to such open source software in accordance with the applicable open source licenses.
12.4. Governing Law and Jurisdiction. This Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the laws of the State of California, excluding its conflicts-of-law principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be state and federal courts in Santa Clara County, California, and the parties agree to service of process in accordance with the rules of such courts. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply.
12.5. Assignment. Neither party may assign this Agreement without prior written consent of the other party, provided however either party may do so to a successor-in-interest pursuant to a merger, acquisition, or sale of all or substantially all of its business and/or assets. Any assignment in violation of this Section 12.e shall be void. Subject to the foregoing, all rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
12.6. Data Communications. OWNLOCAL shall only collect, access, use, store, safeguard, disclose and transfer (“Process”) Personal Information (i) for the purposes of this Agreement, including without limitation, to implement and deliver the SaaS Product and its features and associated services, provide Customer support, and help Customer prevent or address service or technical problems, (ii) as otherwise expressly permitted by Customer in writing, or (iii) as compelled by law. Customer shall make such disclosures, obtain such consents, and provide such access, choices and other applicable rights to individual users with regard to the Processing of Personal Information as are required under applicable law, rules or regulations. “Personal Information” means any information relating to an identified or identifiable individual user that is obtained by or communicated to OWNLOCAL by Customer in performance by OWNLOCAL of its obligations under this Agreement. OWNLOCAL collects, analyzes, and uses aggregated, de-identified technical data and related information (such as product or feature usage, device metrics/metadata and/or mobile application usage) to facilitate market research, product development/improvement and to provide support and maintenance services. OWNLOCAL may use, store, or disclose such information or material derived from such information, as long as it is in a form that does not identify or is not attributable to any individual.
12.7. Equitable Relief. The parties agree that a material breach of this Agreement adversely affecting OWNLOCAL’s or its suppliers’ intellectual property rights in the SaaS Product or either party’s Confidential Information may cause irreparable injury to such party for which monetary damages would be an inadequate remedy and the non-breaching party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have under this Agreement or at law.
12.8. Publicity. OWNLOCAL may publicly disclose that Customer is a customer of OWNLOCAL and a licensee of the SaaS Product, including in a list of OWNLOCAL customers and other promotional materials.
12.9. Independent Contractor. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
12.10. Customer Affiliates. An Affiliate may purchase OWNLOCAL products and/or services either by executing a participation agreement with OWNLOCAL or through OWNLOCAL’s acceptance of an Order issued by such Affiliate or Authorized Reseller (as applicable). Upon execution of a participation agreement by Affiliate or, if the Affiliate issues a purchase order referring to this Section 12.j, that is accepted by OWNLOCAL, such Affiliate shall be deemed to have purchased such products and/or services hereunder, and such Affiliate shall be bound by and shall comply with the terms and conditions of this Agreement as a “Customer” under the Agreement.
12.11. Waiver & Severability; Amendments. The failure of either party to enforce any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties.
12.12. Notices. Except as otherwise provided in this Agreement, all legal notices to Customer will be given in writing to any Customer address listed on the applicable Order. All legal notices to OWNLOCAL will be given in writing to: OWNLOCAL, Inc., 415 East Middlefield Road, Mountain View, CA 94043, U.S.A., Fax: 650-963-3307, Attention: General Counsel. Such notices will be effective (a) when personally delivered, (b) on the reported delivery date if sent by a recognized international or overnight courier or by fax, or (c) five business days after being sent by registered or certified mail (or ten days for international mail). For clarity, purchase orders, invoices, and other documents relating to order processing and payment are not legal notices and may be delivered electronically in accordance with OWNLOCAL and Customer’s standard ordering procedures.
12.13. Entire Agreement. This Agreement consists of these terms and conditions, and the attached schedule(s), which are incorporated by reference. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes and cancels all prior agreements, representations, communications, and understandings of the parties, written or oral, relating to such subject matter, and is not intended to confer upon any person other than the signatories below any rights or remedies. This Agreement prevails over any conflicting, or additional terms of any ordering document, acknowledgment, confirmation or other document issued by Customer before or after the execution of this Agreement unless such conflicting or additional terms have been introduced via an amendment and accepted in writing by both parties. The headings of sections of this Agreement are for convenience and are not for use in interpreting this Agreement.