Software as a Service Agreement (with Statement of Work)

This Software as a Service Agreement (this “Agreement”), effective as of [DATE] (the “Effective Date”), is entered into between [Company], [Company Entity Type] (“Company”), and [Customer Name], a [Customer State] [Customer Entity Type] (“Customer”).

1. Software Services. Subject to the terms and conditions of this Agreement, Company will use commercially reasonable efforts to provide to Customer the Software Services described in the Statement of Work attached to this Agreement and incorporated herein by reference (a “Statement of Work” or “SOW”), and in any additional SOWs that may be entered into by the parties from time to time and which incorporate this Agreement by reference (collectively, the “Services”). In the event that there is a conflict between this Agreement and an SOW, this Agreement will control, unless otherwise expressly provided in the SOW. In addition, Company reserves the right, in its sole discretion, to make any changes or updates to the Services that it deems necessary or useful to (a) maintain or enhance the quality, delivery, cost efficiency or performance of the Services or (b) comply with any applicable law, statute, regulation or other governmental rule or requirement (“Law”). All updates or updated versions provided by Company during the Term (as defined in Section 7) are deemed part of the Services and are subject to all applicable terms and conditions in this Agreement. If Company introduces any new services or products that Company markets as a distinct service or product, Company may make such service or product available to Customer at an additional cost under a separate SOW.

2. Customer Responsibilities and Restrictions. As a condition to receiving the Services, and in addition to any other obligations set forth in a properly executed SOW, Customer may only use the Services in furtherance of its internal business operations, and not for the use by or benefit of any third party. Customer will be exclusively responsible for and is required to (a) obtain and maintain hardware, software, operating systems, networks, databases, web servers or other information technology infrastructures necessary to connect to, access or otherwise use the Services (collectively, the “Customer Information Technology Infrastructure”), (b) employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to maintain the security of the Customer Information Technology Infrastructure and Services, to ensure that the Customer Information Technology Infrastructure and Services are accessed and used solely by authorized users as permitted by this Agreement, and to ensure that the Services aren’t being used to collect any data or information prohibited by any applicable Law, and (c) provide all cooperation and assistance as Company may reasonably request to enable it to exercise its rights and perform its obligations under this Agreement. Customer may not, and may not permit any third party to (i) modify, translate or create derivative works based on the Services or Company Intellectual Property (as defined in Section 4), alter or remove any proprietary rights, notices or marks in the Services, or use the Services in any way or for any purpose that infringes, misappropriates or otherwise violates any intellectual property rights or other right of any third party, (ii) reverse engineer, disassemble or otherwise attempt to derive the source code of Company software, (iii) bypass or breach any security device or protection used for or contained in the Services or otherwise use the Services in any damaging or hazardous environments, (iv) use the Services in connection with any time-sharing or service bureau, for any other commercial purpose, or otherwise in any way that is detrimental to Company, (v) reposition, move, modify, tamper, or alter any Company hardware or equipment provided to or installed at Customer in any way, (vi) modify, tamper, or alter the Services or combine the Services with any third-party software in order to use the Services in a manner that is not permitted or contemplated by this Agreement, or (vii) use the Services in any fraudulent, harmful or misleading way or in any other way that violates any applicable Law.

3. Fees; Payment Terms. Customer will pay Company the fees described in any SOW for the applicable Services in accordance with the terms therein (the “Fees”). If an SOW is renewed for any renewal term, Customer will pay the then-current fees that Company charges for the Services during the applicable renewal term, unless otherwise set forth in a properly executed SOW. If Customer is more than thirty (30) days late in paying an invoice, Company will charge interest at the rate of 2% per month or the highest rate permissible under applicable law on the unpaid amount, calculated daily and compounded monthly, until the unpaid balance is paid in full. Customer will be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. Customer will pay all amounts due under this Agreement without setoff, deduction, recoupment or withholding of any kind for amounts owed or payable by Company whether under this Agreement, applicable Law or otherwise and whether relating to Company’s breach, bankruptcy or otherwise.

a. Company Intellectual Property. All right, title and interest in and to the Services and the Company Intellectual Property are and will remain with Company and its licensors, if any, subject only to the limited license granted to Customer under this Agreement. Company grants Customer a non-exclusive, non-transferable, non-sublicensable license to use the Services and Company Intellectual Property during the Term solely in furtherance of Customer’s internal business operations and not for the use by or benefit of any third party. “Company Intellectual Property” means: (i) the software applications used by Company to provide the Services, including all updates, revisions, derivatives, improvements and modifications thereto; (ii) the hardware, software, databases, networks, cloud or other hosted solutions, or other information technology infrastructure used by or on behalf of Company in performing the Services (the “Company Information Technology Infrastructure”); and (iii) any other technology, data (whether encrypted or unencrypted), reports, documents, manuals, instructions or other materials or deliverables that Company creates, derives from, provides or uses in connection with the Services and any other information or materials that otherwise comprise or relate to the Services.

b. Customer Intellectual Property. Notwithstanding anything herein to the contrary, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all information and data and other content provided by Customer to Company to enable the provision of the Services (“Customer Materials”). Other than as provided in Section 4(c) herein, Customer will also be the owner of all right, title and interest in and to all information, data and other content that is collected or otherwise received by Company from Customer through the Services, including raw data generated by or collected from Customer’s systems, users or equipment in connection with the Services, and any materials, reports or analyses that incorporate or are derived from the processing of such information, data or content by or through the Services which in each case is unique to Customer (“Customer Data” and, together with the Customer Materials, “Customer Intellectual Property”). Customer irrevocably grants all such rights and permissions in or relating to Customer Intellectual Property (including, without limitation, the Customer Data and any information, data, reports or analyses derived therefrom) to Company and its employees, officers, directors, agents, independent contractors, service providers or subcontractors (“Representatives”) (i) as are necessary or useful for Company or any of its subcontractors to perform the Services and exercise its rights hereunder and (ii) to use to improve and enhance the Services and for other developmental, diagnostic and corrective purposes in connection with the Services and other Company services or offerings.