SmartSaaS Software Solutions Agreement
Last Updated: 9th Dec 2022 | Version: 1.1
This Software Solutions Agreement (this “Agreement”) is entered into as of the Effective Date set forth on the signature page of this Agreement by and between the following parties: (i) the client (“Customer”) identified on the signature page of this Agreement; and (ii) SmartSaas (“Provider”).
You must understand the risks and liabilities associated with the use of our software, we, therefore encourage you to read these Terms and Conditions carefully before agreeing to them and before you start using our Service.
If you have any questions regarding the content of these Terms and Conditions or would like to get a better understanding of how our Software Solutions work, please do not hesitate to contact us by emailing us at admin@smartsaas.co.uk.
1. DEFINITIONS
In this Agreement, except to the extent expressly provided otherwise:
“Account” means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;
“Agreement” means this agreement including any Schedules and any amendments to this Agreement from time to time;
“Business Day” means any weekday other than a bank or public holiday in England;
“Business Hours” means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
“Charges” means the following amounts:
(i) the amounts specified in Part 2 of Schedule 1 (Hosted Services particulars), (ii) such amounts as may be agreed in writing by the parties from time to time; and, (iii) amounts calculated by multiplying the Provider’s standard time-based charging rates (as notified by the Provider to the Customer before the date of this Agreement) by the time spent by the Provider’s personnel performing the Support Services (rounded down by the Provider to the nearest quarter hour);
“Customer Confidential Information” means:
(i) any information disclosed by, or on behalf of, the Customer to the Provider at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure: (ii) was marked or described as “confidential”; or, (iii) should have been reasonably understood by the Provider to be confidential;
“Customer Data” means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
“Customer Personal Data” means any Personal Data that is processed by the Provider on behalf of the Customer concerning this Agreement, but excluding data for which the Provider is a data controller;
“Data Protection Laws”/”GDPR” means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to the Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);
“Documentation” means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
“Effective Date” means the date of execution of this Agreement;
“Amount Specified” means the amount agreed by the Customer and Provider in respect to payment and charges of initial service and payment according to this agreement;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Hosted Services” means any SmartSaaS product including SaaS- Sign, SaaS-Collect and SaaS-Analyse, as specified in the Hosted
Services Specification, which will be made available by the Provider to the Customer as a service per this Agreement;
“Hosted Services Defect” means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(i) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services; (ii) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer; (iii) a failure of the Customer to perform or observe any of its obligations in this Agreement]; and/or; (iv) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
“Hosted Services Specification” means the specification for the Platform and Hosted Services;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Maintenance Services” means the general maintenance of the Platform and Hosted Services and the application of Updates and Upgrades;
“Personal Data” has the meaning given to it in the Data Protection Laws applicable in the United Kingdom;
“Platform” means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
“Provider” when referring to the software solution, SmartSaas;
“Schedule” means any schedule attached to the main body of this Agreement;
“Services” means any services that the Provider provides to the Customer, or must provide to the Customer, under this Agreement;
“Support Services” means the provider, SmartSaas;
“Support Services” means support in relation to the use of, the identification and resolution of errors in the Hosted Services, but shall not include the provision of training services;
“Supported Web Browser” means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
“Term” means the length of this Agreement;
“Update” means a hotfix, patch or minor version update to any Platform software; and
“Upgrade” means a major version upgrade of any Platform software.
2. AGREEMENT TERM
The “Initial Term” of this Agreement is the first one (1) year(s) from the date the Software Solution (as defined below) is installed on the Customer’s Machine (as defined below) as of the Effective Date.
A minimum of ninety (90) days before the end of the Initial Term or any ‘Renewal Term’, whichever comes first, either party may give the other party written notice of its intent not to renew, if however, this does not happen, this Agreement will automatically renew for additional one (1) year periods (each a “Renewal Term” and, together with the Initial Term, the “Term”).
There are renewal fees for each one-year period of renewal.
Despite the aforementioned, this Agreement may be dissolved before it expires as may be specified elsewhere herein.
3. LANGUAGE
Regardless of which this language agreement may be translated, the English language version alone shall be the authoritative, controlling, and regulating version.
4. SERVICE LEVEL
We will use all commercially reasonable efforts to provide the service 24 hours a day, seven days a week however, we do not warrant that the Software Solution will be free from interruptions, delays or errors caused by our systems, acts or omissions by other third-party service providers, general hardware or software failures or force majeure. You must notify us without undue delay at support@SmartSaas.co.uk if you experience any interruptions, delays or errors in the Software Solution, and provide all reasonably requested information and assistance in identifying and resolving such interruptions, delays or errors.
From time to time, we will perform maintenance and upgrades of our Software Solution, which may result in interruptions, delays, or errors in the Software Solution. Although we will do our best to notify you in advance of any planned maintenance either via email or telephone, we cannot guarantee that such notification will always be provided.
5. RESTRICTIONS AND LIMITATIONS
By accepting these terms and conditions, you confirm and agree that you will not use the Software Solutions provided by us in connection with (i) any business activities that are included in the list of prohibited segments outlined in Exhibit A attached hereto (“Prohibited Segments”).
You furthermore confirm and agree that you will not use the Software Solution for storing or tracking data in connection with the following businesses or business activities without our express written approval, which approval we may withhold or revoke in our sole discretion where we find this to pose a risk to our business and/or reputation:(A) gambling and betting services (irrespective if such gambling and betting services are provided in accordance with applicable laws and authorise by applicable regulatory authorities), (B) gift cards, or (C) event organisers.
We reserve the right to amend these Terms and Conditions at any time. If any such amendment materially and adversely changes your rights and/or obligations concerning your access to or use of the Software Solution, then, for a period of thirty (30) days following such amendment, you may immediately terminate this Agreement by providing written notice of such termination to the Provider prior to the expiration of such thirty (30) day period.
6. ERRORS AND UNAUTHORISED ILLEGAL USE
We will assume that the Customer will be the sole proprietor of our Software Solution, and any data processed by the Customer, will be managed and owned by the Customer. If the Customer discovers or has reason to believe that there has been an error or unauthorised/illegal use of your data, the Customer must contact the Provider within immediate effect and provide all reasonable information and documentation in possession as to the circumstances of any such error and/or unauthorised or illegal use of the Customer’s account and data and take all reasonable steps requested by us to assist in our investigation.
The Customer must ensure that the persons using the Hosted Services and Software Solution with the authority of the Customer must not use the Solution in a way that causes damage, or impairment the availability or accessibility of the solutions provided.
The Customer has no right to access the software code (including object code, intermediate code, and source code) of the Platform, either during or after the Term.
7. FEES, CHARGES & OTHER AMOUNTS
For the use of our Software Solution, you agree to pay the fees, charges and other amounts (“Charges”) assessed and calculated by us per your Application, this Agreement and/or otherwise agreed to by you and Provider; provided that we reserve the right to adjust the Charges at any time as necessary to reflect any increase in third party costs incurred by Provider in connection with providing you with access to or use of our Software Solution and/or changes in Regulations or applicable law. The Provider may elect to vary any element of the Charges providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds 5% per annum over the percentage increase, during the same period in the Retail Prices Index (all items) published by the UK Office for National Statistics.
If the Charges are based, in whole or part, on the time spent by the Provider performing the Services, the Provider must obtain the Customer’s written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded; and unless the Customer otherwise agrees in writing, the Customer shall not be liable to pay the Provider any Charges in respect of Services performed in breach of this Clause.
By accepting our Software Solution Terms and Conditions, the Customer requests and agrees that the Charges assessed and calculated by the Provider following the fee schedule outlined in the Customer’s Application and/or otherwise agreed to by the Customer and Provider.
The Customer remains directly responsible for payment of any Charges not collected in such a manner. Charges not deducted during the initial registration period may be invoiced at a later stage via e-mail or post. Charges are exclusive of VAT and you will be responsible for payment of VAT or any other taxes, surcharges or other amounts required to be charged by/collected by the Provider under applicable law or Regulations.
The Provider withholds the right to suspend or terminate the Software Solution if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least thirty (30) days written notice, following the amount becoming overdue, of its intention to suspend the services provided on this basis.
8. FREE TRIAL
If the Customer registers on the Provider’s or an Affiliate’s website for a free trial, SmartSaas will make the applicable Service(s)
available to the Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which the Customer
registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by the Customer for
such Service(s), or (c) termination by the Provider in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
Any data Customer enters into the services, and any customizations made to the services by or for the Customer, during the Customer’s free trial will be permanently lost unless the Customer purchases a subscription to the same services as those covered by the trial, purchases applicable upgraded services, or exports such data, before the end of the trial period. The Customer cannot transfer data entered or customizations made during the free trial to a service that would be a downgrade from that covered by the trial (e.g. from enterprise edition to professional edition; therefore, if the Customer purchases a service that would be a downgrade from that covered by the trial, the Customer must export the Customer data before the end of the trial period or the Customer data will be permanently lost.
Notwithstanding the “representations, warranties, exclusive remedies and disclaimers” section and “indemnification by the Provider” section below, during the free trial, the services are provided “as-is” without any warranty and the Provider shall have no indemnification obligations nor liability of any type concerning the services for the free trial period unless such exclusion of liability is not enforceable under applicable law in which case the Provider‘s liability with respect to the services provided during the free trial shall not exceed $1,000.00. without limiting the foregoing, the Provider and its affiliates and its licensors do not represent or warrant to the Customer that: (a) the Customer’s use of the services during the free trial period will meet the customer’s requirements, (b) the Customer’s use of the services during the free trial period will be uninterrupted, timely, secure or free from error, and (c)
usage data provided during the free trial period will be accurate. notwithstanding anything to the contrary in the “limitation of liability” section below, the Customer shall be fully liable under this agreement to the Provider and its affiliates for any damages arising out of the Customer’s use of the services during the free trial period, any breach by the Customer of this agreement and any of the Customer‘s indemnification obligations hereunder.
The Customer shall review the applicable service’s documentation during the trial period to become familiar with the features and functions of the services before making a purchase.
9. USE OF SERVICES AND CONTENT
SUBSCRIPTIONS
Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. The Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by the Provider regarding future functionality or features.
10. OWNERSHIP
SmartSaas. Notwithstanding anything to the contrary contained herein, except for the limited access and use rights expressly provided herein, the Provider and its licensors retain all rights, titles and interests (including, without limitation, all patent, copyright, trade secret and other intellectual property rights) in and to SmartSaas Online,The Documentation, the Third Party Code, any other SmartSaasdeliverables and any and all related and underlying software (including interfaces), databases (including data models, structures, and any other non-customer specific data and statistical data), technology, reports, documentation, as well as any related process or methodology provided or used by the Provider, and with respect to each of the foregoing, any copies, modifications, improvements, derivative works, or enhancements thereto however developed or provided (including any which incorporate any of your ideas Feedback or suggestions) (collectively, ‘SmartSaas Technology”). You acknowledge the Provider Online Subscription Agreement that you are obtaining only a limited right to access and use the Provider Online on a hosted basis and that irrespective of any use of the words “purchase”, “sale”, “sublicense” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise, and further acknowledge that nothing contained in this Agreement shall be construed to convey to you ownership of any intellectual property rights in or to any SmartSaas Technology or any related methodologies or processes. Nothing in this Section shall be deemed as granting SmartSaas ownership of Customer Data or your Non-SmartSaas Apps or in any way impacting your ownership of Customer Data or your Non-SmartSaas Apps.
Feedback. From time to time, you or your Authorised Users may submit suggestions, enhancements, requests, recommendations,
corrections, or other feedback relating to SmartSaas Online, Content or other SmartSaas software or services (“Feedback”). You agree that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential by you, shall not, absent a separate written agreement, create any confidentiality obligation for or upon by the Provider. You will not give Feedback that is subject to licence terms that seek to require any SmartSaas product, technology, service or documentation incorporating or derived from such Feedback, or any SmartSaas intellectual property, to be licensed or otherwise shared with any third party. The Provider may, in connection with any of its products or services freely use, copy, disclose, licence, distribute and exploit any Feedback in any manner it sees fit without any obligation, royalty or restriction based on intellectual property rights or otherwise.
11. SUBSCRIPTION TERM, FEES & PAYMENT
Subscription Term. Unless otherwise specified on the applicable Ordering Document, each Subscription Term shall begin on the effective date of the applicable Ordering Document and expire twelve (12) months thereafter. All applicable fees for such renewals will be at the Provider then-current rates. If your subscription is not renewed, your access to SmartSaas Online will terminate at the end of the then-current Subscription Term.
Fees and Payment. You shall pay all fees set forth in the applicable Ordering Document. All payments shall be made in the currency noted on the applicable Ordering Document within thirty (30) days of the date of the applicable electronic invoice. Except as expressly set forth herein, all fees are non-refundable once paid. Unless timely provided with a valid certificate of exemption or other evidence that items are not taxable, the Provider will invoice you for all applicable taxes including, but not limited to, VAT, GST, sales tax, consumption tax and service tax. If any withholding tax is required by law to be paid by you in relation to payments due to the Provider hereunder, you will provide the Provider with official receipts and/or certificates from the appropriate taxing authorities to establish that any applicable taxes have been paid.
Suspension of Services. If your account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), the Providerreserves the right to suspend your access to SmartSaas Online without liability to you until such amounts are paid in full. Within a reasonable time after written notice by the Provider that your use of the the Provider’s Online service is having a detrimental impact on the Provider’s ability to provide SmartSaas Online to its other customers, the Provider reserves the right, at its sole discretion, to suspend or limit your access to SmartSaas Online.
12. PAYMENT
The Provider shall issue invoices for the Charges to the Customer in arrears OR periodically, during the term OR after the invoicing dates set out in the Schedule. Any Charges issued to the Customer must be paid to the Provider within a period of 30 days following the issue of an invoice in accordance with the Agreement.
Charges can be paid by use of a debit card, credit card, direct debit, bank transfer or cheque using the payment details as outlined by the Provider to the Customer.
If Payment is not received on time under the agreement and according to the payment schedule, the Provider may; (i) charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate which will accrue daily until the date of payment and be compounded each calendar month and (ii) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
13. EVALUATION ACCESS
If the Provider has made available to you free, trial or evaluation access to SmartSaas Online (“Evaluation Access”), you may use such access solely for the purpose of evaluating SmartSaas Online to determine whether to purchase a subscription from the Provider. You may not use Evaluation Access for any other purposes, including but not limited to competitive analysis, commercial, professional or for-profit purposes. Evaluation Access is limited to fourteen (14) days from the date you activate your Evaluation Access unless otherwise specified by the Provider in the applicable ordering Document or in separate writing from the Provider (“Evaluation Period”). Unless you purchase a subscription for SmartSaas Online, your Evaluation Access may be terminated and, in any event, your right to access and use of the Provider’s automatically expires at the end of the Evaluation Period. Upon any termination or expiration of the Evaluation Period, your Evaluation Access will cease and you will no longer have access to any Customer Data used in connection with such Evaluation Access. Notwithstanding any other provision of this Agreement, Evaluation Access is provided “AS IS” without warranty or support of any kind, express or implied. The Provider may terminate your Evaluation Access at any time for any reason and without liability of any kind. if you subsequently purchase a subscription to the Provider, your evaluation access shall immediately terminate and you expressly agree that, unless you have a separate signed agreement governing your access to and use of the Provider, this agreement, and the terms and conditions herein, shall govern your use of such non-evaluation version.
14. MAINTENANCE SERVICES
A prior notice of 10 days of scheduled maintenance services that are likely to affect the availability of the services provided or are likely to have a material negative impact will be provided.
The Provider shall create backup copies of the Customer’s data at least daily to ensure that each data copy is sufficient to enable the Provider to restore the Hosted Services they state that they were in at the time the backup was taken and shall retain and securely store each copy for a minimum period of at least 30 days. Within the period of 3 business days following a written request made by the Customer, the Provider shall use all reasonable endeavours to restore the Platform to the state required by the Customer and stored by the provider in accordance with the
previous clause. The Customer acknowledges that this process shall overwrite the Customer Data stored on the Platform prior to the restoration.
15. NO ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
Nothing contained within this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to Provider.
16. SMARTSAAS CONFIDENTIALITY OBLIGATIONS
We as the Provider must; (i) keep any Customer Confidential Information strictly confidential; (ii) not disclose the Customer Confidential Information to any individual, company or organisation without the Customer’s prior written consent; (iii) use
the degree of care to protect the confidentiality of the Customer Confidential Information as we use to protect our own confidential information of a similar nature, being at the very least a reasonable degree of care; (iv) act in good faith at all times in relation to the Customer Confidential Information; and (v) not use any Customer Confidential Information for any purpose other than contacting or invoicing the Customer. The Provider reserves the right to disclose the Customer’s Confidential Information to the Provider’s officers, employees, professional advisers, insurers, agents and subcontractors, who have a need to access the Customer Confidential Information for the performance of their duties provided it does not breach the aforementioned terms.
This clause imposes no obligations upon the Provider with respect to the Customer Confidential Information that; (i) is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality, (ii) is or becomes publicly known through no act of the Provider; (iii) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality. The restrictions do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order of request, or pursuant to disclosure requirements relating to the listing of the stock of the Prover on any recognised stock exchange. These provisions continue in force indefinitely following the termination of this Agreement OR for a period of 5 years following the termination of this Agreement, at the end of which period they will cease to have an effect.
17. DATA PROTECTION
Both parties outlined in the Agreement shall comply with the Data Protection Laws with respect to the processing of the Customer’s Personal Data. The Customer warrants to the Provider that it retains the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement. The provider shall only process the Customer‘s Personal Data during the term outlined in the Agreement and for not more than thirty (30) days following the end of the contract term. The Provider shall ensure that persons who have access and authority to process the Customer’s Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer‘s Personal Data. Neither Provider nor the Customer must engage any third party to process the Customer’s Personal Data without prior written consent and authorisation of either party. The Provider shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third-party processor, and if the Customer objects, the Customer may terminate the agreement on fourteen (14) days written notice to the Provider.
The Provider, within reasonable measure and taking into account the nature of the processing, takes appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Law. The Provider will also assist the Customer in ensuring compliance with obligations relating to the security of processing personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Provider shall report any Personal Data breach to the Customer within a reasonable amount of time following the Provider becoming aware of the breach.
The Provider reserves the right to charge for any work performed by the Provider at the request of the Customer pursuant to this clause. The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer with respect to Data Protection Laws and this clause. If there are any changes or prospective changes to the Data Protection Law which may result in one or both parties not complying with the Data Protection Act (2018), both parties shall use their best endeavours promptly to agree on such variations to this Agreement as may be necessary to remedy such non-compliance.
18. WARRANTIES
The Provider warrants to the Customer that:
- The provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
- The Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfilment of the Provider’s obligations under this Agreement;
- Any issues or defects found within the Software Solution, limited to the Provider’s Software, shall be the responsibility of the Provider and will be resolved within a reasonable measure of time by the Provider.
- The Software Solution will be free from viruses, worms, Trojan horses, ransomware, spyware, adware, and other malicious software programs.
- The Software Solution will incorporate security features reflecting the requirements of good industry practice;
- When used by the Customer in accordance with this Agreement, the Software Solution will not breach any laws, statutes or regulations under English Law;
- All the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
19. WARRANTY LIMITATIONS AND ACKNOWLEDGEMENTS
The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and is also subject to other provisions of this Agreement. The Provider gives no warranty or the representation that the Software Solution will be completely free from defects, errors, and bugs.
The Customer also acknowledges that complex software is never entirely free from security vulnerabilities; thus,subject to other provisions of this Agreement, the Provider gives no warranty or representation that the Software Solution will be entirely secure. The Customer acknowledges that the Software Solution is designed to be compatible only with software and systems as specified compatible with the Software Solution, and the provider cannot guarantee that the Software Solution will be compatible with any other software or systems.
No legal, financial, accountancy or taxation advice under this Agreement or in relation to the Software Solution; except to the extent expressly provided otherwise in this Agreement, is warranted by the Provider or Software Solutions and the Provider does not warrant or represent that use of the Software Solutions will not give rise to any legal liability on the part of the Customer or any other person.
20. LIMITATIONS AND EXCLUSIONS OF LIABILITY
The Customer acknowledges that nothing in this Agreement will:
(i) limit or exclude any liability for death or personal injury resulting from negligence; (ii) limit or exclude any liability for fraud or fraudulent misrepresentation;
(iii) limit any liabilities in any way that is not permitted under applicable law;
(iv) exclude any liabilities that may not be excluded under applicable law.
The limitations and exclusions of liability set out elsewhere in this Agreement govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
(i) The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event; (ii) The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings; (iii) The Provider shall not be liable to the Customer in respect of any loss of revenue or income; (iv) The Provider shall not be liable to the Customer in respect of any loss of use or production; (v) The Provider shall not be liable to the Customer in respect of any loss of business, contracts, or
opportunities; (vi) The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software[; providing that this shall not protect the Provider unless the Provider has fully complied with its obligation; (vii) The Provider shall not be liable to the Customer in respect of any special, indirect, or consequential loss or damage.
21. LIABILITIES
The liability of the Customer to the Provider under this Agreement in respect of any event or series of related events shall not exceed the greater of; (i) the amount specified; and (ii) the total amount paid and payable by the Customer to the Provider under this Agreement in the 12-month period preceding the commencement of the event or events.
The aggregate liability of the Customer to the Provider under this Agreement shall not exceed the greater of:
(i) the amount specified; and (ii) the total amount paid and payable by the Customer to the Provider under this Agreement.
22. LIMITATION OF LIABILITY
Limitation of Liability. In no event shall the aggregate liability of each party together with all of its affiliates arising out of or related to this agreement exceed the total amount paid by the Customer and its affiliates hereunder for the services giving rise to the liability in the twelve months preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability, but will not limit the Customer‘s and its affiliates’ payment obligations under the “fees and payment” section above.
Exclusion of Consequential and Related Damages. In no event will either party or its affiliates have any liability arising out of or related to this agreement for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party or its affiliates have been advised of the possibility of such damages or if a party’s or its affiliates’ remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.
23. FORCE MAJEURE EVENT
If a Force Majeure Event results in a failure or delay in either party performing any obligations under this Agreement (other than any obligation to make a payment), that obligation(s) will be suspended for the duration of the Force Majeure Event.
Either party that becomes aware of a Force Majeure Event which impacts or, is due to result in any failure or delay in that party performing any obligation under this Agreement, must:
(i) swiftly notify the other and (ii) inform the other of the period for which it is estimated that such failure or delay will continue.
A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
24. TERM AND TERMINATION
Term of Agreement. This Agreement commences on the date the Customer accepts it and will contine until all subscriptions thereunder have expired or have been terminated.
Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one-year terms, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at SmartSaas’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
Termination. A party may terminate this Agreement for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of a such period, or (ii) if the other party becomes the subject of a petition
in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Refund or Payment upon Termination. If this Agreement is terminated by the Customer in accordance with the “Termination” section above, the Providerwill refund the Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by the Provider in accordance with the “Termination” section above, the Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve the Customer of its obligation to pay any fees payable to the Providers for the period prior to the effective date of termination.
Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” Proprietary Rights and Licences,’’ “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” «Limitation of Liability,” “Refund or Payment upon Termination; “Removal of Content and Non-SmartSaas Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as the Provider retains possession of the Customer’s Data.
Either party may terminate this Agreement by giving the other party at least thirty (30) days written notice of termination.
Either party may also terminate this Agreement immediately by giving written notice of termination to the other party provided the other party commits a marital breach of this Agreement.
Either party may terminate this Agreement immediately by giving written notice of termination provided:
- the other party is:
- is dissolved;
- ceases to conduct all (or substantially all) of its business;
- is or becomes unable to pay their debts as they are due;
- is or becomes insolvent or is declared insolvent;
- convenes a meeting or makes/proposes to make any arrangement or composition with their creditors;
- an order is made fraudulently or to aggregate the other party If the other party is an individual;
- the other party dies;
- the other party becomes incapable of managing their own affairs as a result of illness or incapacity
- the other party is the subject of a bankruptcy petition or order.
Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect.
Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
Within 30 days following the termination of this Agreement for any reason; (i) the Customer must pay any outstanding Charges in respect of Services provided to the Customer before the termination of this Agreement;, and (ii) the Provider must refund to the Customer any charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement without prejudice to the parties’ other legal rights.
25. GENERAL PROVISIONS
Export Compliance. The Services, Content, other SmartSaas technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. SmartSaas and the Customer each represent that it is not on any UK. government denied-party list. The Customer will not permit any User to access or use any Service or Content in a UK embargoed
Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
Entire Agreement and Order of Precedence. This Agreement is the entire agreement between SmartSaas and the Customer regarding the Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition starred in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favour of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such termination, the Provider will refund the Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and insure to the benefit of the parties, their respective successors and permitted assigns.
SmartSaas Contracting Entity, Notices, Governing Law, and Venue. The Provider entity entering into this Agreement, the address to which the Customer should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, depend on where the Customer is domiciled.
26. NOTICES
Any notice from one party to the other party under this Agreement must be given by one of the below-mentioned methods (using the relevant contact details as indicated):
(i) Delivered personally or sent by courier by recorded delivery, in which case the notice shall be deemed to be received upon delivery or; (ii) Delivered by electronic mail, marked as a priority with a clear Customer reference no. in the subject line.
If the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
The Provider’s contact details are as follows:
BY POST:
SMARTSAAS LTD,
43 Salisbury Road Southall Middlesex
UB2 5QJ
By phone:
+447738672281
By email:
27. SUBCONTRACTING
Subject to any express restrictions in this Agreement, the Provider may subcontract any of its obligations under this Agreement (providing that the Provider must give to the Customer, however, promptly following the appointment of a subcontractor, the Provider will deliver a written notice specifying the subcontracted obligations and identifying the subcontractor in question.
Notwithstanding the provisions of this clause, but subject to any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any third-party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements in the Platform.
28. GENERAL
No breach of any provision in this Agreement shall be waived except with the express consent of the party not in breach.
If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted). This Agreement may not be varied except by a written document signed by or on behalf of each party.
Neither party may, without the prior written consent of the other party, assign, transfer, charge, licence or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
This Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree to any amendment, waive, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
This Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements, and understandings between the parties in respect of that subject matter.
This Agreement shall be governed by and construed in accordance with English law.
The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
29. INTERPRETATION
In this Agreement, a reference to a statute or statutory provision includes a reference to:
(i) that statute or statutory provision was modified, consolidated, and/or re-enacted from time to time; and (ii) any subordinate legislation made under that statute or statutory provision.
The Clause headings do not affect the interpretation of this Agreement. References in this Agreement refer to “calendar months” and are the 12 named periods (January, until December) in which a year is divided.
In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a class of acts, matters or things.