Software as a Service Agreement
This Software as a Service Agreement (“Agreement”) made as of 2/01/2018, between Constellation Agency, LLC, a Limited Liability Company organized under the laws of the State of New Jersey, having a principal place of business at 85 Broad St, New York, NY 10004 (“Constellation”), and Customer.
“Customer Data” means all data, materials and information provided by Customer to Constellation for use in connection the Service including, without limitation, customer applications, data files, and graphics.
“Documentation” means manuals, user guides, online help provided or made available by Constellation to Customer related to the access and use of Services.
“Service(s)” means any Software, infrastructure, and hosted platform, as set forth in Schedule A, provided and maintained by Constellation to which Customer is being granted access under this Agreement via web site or another designated IP address.
“Term” of this Agreement is as defined in Section 7.
“Training and Support” means training and support services provided to Customer by Constellation pursuant to this Agreement as set forth in Schedule B.
“Software” means any object code version of any software provided to Customer by access or otherwise as part of the Service, including any updates.
2. Provision of Services by Constellation
a) Constellation grants Customer a limited, nonexclusive, non-transferable, worldwide right to access and use the Services specified in Schedule A for Customer’s internal business purposes during the Term, subject to this Agreement.
b) If the Services are being provided to Customer for evaluation purposes, then Customer can only use the Services for non-production purposes, and only for the period of time granted by Constellation for evaluation in Schedule A. The Services provided for evaluation purposes are provided to Customer “AS-IS” without any indemnification, support, or warranty of any kind, express or implied.
c) Constellation will provide Training and Support to Customer as specified in Schedule B to access and use Services specified in Schedule A.
Customer will not:
a) transfer, assign, or sublicense this Agreement, or any rights under this Agreement, or make available the Services provided under this Agreement to any third party, without express written consent of Constellation;
b) modify or adapt or create derivative works based upon the Services or Documentation;
c) remove, modify, or obscure any copyright, trademark, or other proprietary logos or notices contained in the Services or Documentation;
d) reverse engineer, decompile, disassemble, decrypt, or otherwise attempt to derive the source code of any Software, except as expressly permitted by applicable law;
e) access and use the Services and Documentation to create a similar or competitive product; or
f) copy, republish, reframe, or redistribute the Services to third parties, or provide any false identity to access or use the Services.
4. Changes to Services
Constellation may, in its sole discretion, enhance, change, fix, or update one or more features of the Services to the extent the core functionality of the Services is not materially reduced. Customer hereby agrees to accept any such enhancements, changes, fixes or updates.
5. Customer Obligations and Customer Grants
a) Upon request by Constellation, Customer will promptly provide Customer Data and assistance to Constellation in a format specified by Constellation to enable Constellation to deliver the Services. Customer agrees that the ability of Constellation to deliver the Services as provided for in this Agreement depends upon the accuracy and the timeliness of such Customer Data and assistance.
b) Customer will collect, input, and update all Customer Data and ensure that Customer Data does not include anything that actually or potentially infringes or misappropriates intellectual property, including copyright, trademark, trade secret and the like, of any third party, and does not include any material that is defamatory, obscene, or harassing. Customer is solely responsible for Customer Data and its accuracy and timeliness.
c) Customer hereby grants Constellation a nonexclusive, nontransferable license to copy, store, configure, perform, display, transmit, and otherwise use Customer Data solely as needed for Constellation to provide the Services to Customer, as further subject to this Agreement.
d) Customer hereby grants to Constellation a royalty-free, irrevocable, worldwide right and perpetual license to use and incorporate into Services, for any purpose, any suggestions, enhancements, recommendations or other feedback provided by Customer relating to the Services.
e) Customer is solely responsible for all user activity of and accounts for the Services, including without limitation, maintaining appropriate security, protection, and backup of Customer Data, and the safeguarding of all passwords, login information or other user identifiers relating to Services including keep such passwords, login information or other user identifiers confidential and providing such passwords only to authorized uses. Customer will comply with all applicable local, state, national and foreign laws and regulations in connection with the use of the Services, including, without limitation, those relating to data privacy, data security, and the transmission of technical, business, or personal data. Customer is solely responsible the acts and omissions of its employees and agents who access and use Services provided under this Agreement. Customer agrees Constellation will not be liable for any loss of data, including Customer Data, or functionality caused directly or indirectly by Customer employees or agents. Customer will promptly notify Constellation of any unauthorized use of Services, including any unauthorized use of any passwords, login information, or other user identifiers, or any breach of security. Customer will promptly use best efforts to stop any known or suspected unauthorized use. Customer will use best efforts to protect any passwords or login information from unauthorized disclosure or use by third parties.
6. Fees and Payment
a) Fees for the Services and Training and Support are set forth in Schedule C. All fees are stated in and must be paid by Customer in United States Dollars.
b) If Customer is late in paying an invoice, then any sum unpaid by Customer will bear interest from the due date until the date paid at 10% interest per annum. If Customer is more than thirty days late in paying an invoice or any part thereof, Constellation may suspend Services on ten days’ notice to Customer, but only if Customer’s failure to pay continues for ten days beyond such notice. Suspension of Services will not release Customer from its payment obligations under this Agreement. Customer agrees that Constellation will not be liable to Customer or any third party for any liabilities, claims, or expenses arising from or relating to suspension of Services resulting from Customer’s failure to pay.
c) Customer will be responsible for and will pay all sales, value added, general standard, use and similar taxes relating to the purchase and use by Customer of Services. Customer will not be liable for taxes based on Constellation’s net income.
7. Term and Termination
a) the Term of this Agreement will commence from the date Services are made available to Customer and will expire on the end date specified in Schedule A.
b) either party may terminate this Agreement, with or without cause, on thirty days prior written notice to the other party. Either party may also terminate this Agreement upon a material breach by the other party where the breach has not been cured with thirty days after the other party has received written notice of the breach.
c) If this Agreement is terminated for any reason, Customer will pay Constellation for Services provided up until the date of termination.
d) upon expiration or termination of this Agreement, Customer will cease any further use of the services and will destroy copies of any Software within the control of the Customer.
e) The following sections of this Agreement will survive the expiration or termination of this Agreement: 3, 6, 7, 8, 9, 10, 11, 12, and 13.
8. Warranties and Disclaimers
a) Constellation represents and warrants that it will provide Services in a professional manner consistent with general industry standards and that the Services will perform substantially in accordance with the Documentation. For any breach of a warranty, the exclusive remedy of Customer will be as provided in Section 7, Term and Termination.
b) CONSTELLATION DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED FREE OF ERROR OR WILL BE UNINTERRUPTED, OR THAT CONSTELLATION WILL CORRECT ALL ERRORS IN THE SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT CONSTELLATION DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT OT LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY, EXPRESS OR IMPLIED, GIVEN BY CONSTELLATION REGARDING THE SUBJECT MATTER OF THIS AGREEMENT. NEITHER CONSTELLATION NOR ANY OF ITS LICENSORS WARRANT THAT THE OPERATION OF THE SERVICES SUBJECT OF THIS AGREEMENT WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR WILL CONSTELLATION OR ANY OF ITS LICENSORS BE LIABLE FOR ANY UNAUTHORIZED ALTERATIONS, THEFT OR DESTRUCTION OF CUSTOMER DATA OR OF CUSTOMER FILES OR PROGRAMS. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 8, CONSTELLATION FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY, CONDITION OR OTHER IMPLIED TERM AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
9. Limitations on Liability
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, PROFITS, REVENUES, GOODWILL, ANTICIPATED SALES, SAVINGS, DATA OR CORRUPTION OF DATA, OR FOR LOSS INCURRED BY PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES, ADMINISTRATIVE TIME OR INTERRUPTION OF BUSINESS BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SERVICES SUBJECT OF THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIMS, 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 AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING NEGLIGENCE, SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM AROSE. THIS LIMITATION OF LIABILITY FOR SERVICES IS IN THE AGGREGATE AND NOT PER INCIDENT. EXCEPT FOR ANY BREACH BY CUSTOMER OF ANY OF CONSTELLATION’S INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, NEITHER PARTY MAY BRING A CLAIM UNDER THIS AGREEMENT MORE THAN EIGHTEEN (18) MONTHS AFTER THE INCIDENT THAT CREATES THE ACTION OR CLAIM.
10. Ownership and Proprietary Rights
a) Constellation and its licensors own all intellectual property rights to the Services, including Software, Documentation, and anything developed and delivered to Customer pursuant to this Agreement, and own all copies and partial copies of these materials, and own all improvements, enhancements, modifications, derivative works in these materials. Customer rights to use Services, Software, and Documentation are limited to those rights as set forth in this Agreement.
b) Customer hereby grants to Constellation a non-exclusive, royalty free, worldwide, irrevocable, perpetual license to use and transfer any oral or written communications provided by Customer to Constellation regarding the Services or Documentation, and Constellation can create and distribute any product or service that incorporates such communications without royalty or other payment to Customer.
c) Customer retains all right, title and interest in intellectual property rights to its Customer Data.
Customer will defend, indemnify, and hold harmless Constellation and its officers, directors, employees, agents, and representatives from and against any and all claims, damages, losses, liabilities, costs and expenses, including reasonable attorney’s fees, (collectively, “Claims”), arising out of or relating to any third party claim, including but not limited to: a) Customer’s use of the Services; b) breach of this Agreement or violation of applicable law by Customer; c) allegations that the use of Customer Data infringes or misappropriates the rights of, or has caused harm to, a third party. Constellation will: a) promptly give Customer written notice of any such Claims; b) give Customer sole control of defense and settlement of any such Claims; c) give Customer reasonable assistance at Customer’s expense. If Constellation is obligated to respond to a third party subpoena or other compulsory legal order or process in relation to any such Claims, Customer will reimburse Constellation for reasonable attorney’s fees, as well as time and materials spent by Constellation employees in responding to the third party subpoena or other compulsory legal order or process.
a) "Confidential Information" includes any information that is clearly identified in writing at the time of disclosure as confidential, and includes any information that, based on circumstances under which it was disclosed, a reasonable persons would believe it to be confidential. Confidential Information includes Customer Data.
b) During the Term of this Agreement and for three (3) years thereafter (perpetually in the case of any Software), the party receiving Confidential Information will (i) hold the disclosing party's Confidential Information in confidence and use reasonable care to protect same; (ii) restrict disclosure of such Confidential Information to those of its employees, agents, subcontractors with a need to know such information and who are under a duty of confidentiality respecting the protection of confidential information that is substantially similar to those of this Agreement and would extend to the disclosing party's Confidential Information; (iii) use such Confidential Information only for the purposes for which it was disclosed, unless otherwise set forth herein. The restrictions will not apply to Confidential Information to the extent
c) The restrictions will not apply to Confidential Information to the extent that such information (i) is, or through no fault of the recipient, has become available to the public; (ii) was lawfully received by the receiving party from a third party from a third party without such restrictions; (iii) was known to the receiving party, can be shown by written documentation, prior to receipt from the disclosing party (iv), was independently developed by the receiving party, as can be shown by written documentation, without breach of this Agreement or access to or use of the Confidential Information.
d) The recipient may disclose Confidential Information to the extent the disclosure is required by law, regulation or court order, provided that the receiving party provides prompt notice of such order, where permitted, and takes reasonable steps to contest or limit any required disclosure, including without limitation, so that the disclosing party may, at its option, seek appropriate protective order or other remedy, the receiving party to reasonably cooperate and assist in such efforts.
e) Customer will not disclose any part of the Services (including without limitation the results or use of any evaluation), Software, Documentation, Training and Support, the terms and conditions of this Agreement (including any Schedules thereto), or any information relating to any of the foregoing without Constellation's prior written permission. Customer acknowledges and agrees that unauthorized use or disclosure of any of the foregoing information would cause irreparable harm and significant injury to Constellation. Customer therefore agrees that Constellation will have the right to obtain injunctive relief or other equitable remedy to enforce obligations under this Agreement without limiting any other rights or remedies.
13. General Provisions
a) Assignment: Constellation may assign its rights and delegate its obligations in whole or in part to any affiliate or subcontractor without the consent of Customer. Customer may assign its rights and delegate its obligations in whole or in part to any affiliate or subcontractor only with written consent of Constellation.
b) Force Majeure: Each party will be excused from performance for any period during which and to the extent that such party, or subcontractor as permitted by this Agreement, is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, riots, acts of terrorism or war, communication line failures, and power failures.
c) Waiver: Failure to enforce any right under this Agreement will not waive that right.
d) Severability: If any term of this Agreement is held to be unenforceable or invalid, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement will remain in full force.
e) Entire Agreement and Amendments: This Agreement, including all Schedules, contains the entire agreement of the parties and supersedes all previous oral or written communications by the parties concerning the subject matter of this Agreement. This Agreement may only be amended only in a writing signed by both parties.
f) Publicity: Constellation may include Customer’s name and logo in its customer lists and on its website. Upon execution of this Agreement by Customer, Constellation may issue a press release announcing the relationship and the manner in which the Customer will utilize the Services. Constellation will coordinate its efforts in this regard with appropriate communications personnel of Customer to obtain approval of the press release as needed.
g) Export Compliance: The Services, including Software, are subject to United States and other local export laws and regulations. Customer will comply with such export laws and regulations, and will obtain all required authorizations, permits, or licenses.
h) Governing Law and Jurisdiction: This Agreement will be governed by the laws of the State of New York. Customer agrees to jurisdiction and venue in the state and federal courts of New York State.
i) Independent Contractor: Each Party shall be deemed to be an independent contractor as to the other for all purposes. This Agreement shall not be construed to (i) create the relationship of Employer and Employee between the Parties or between either Party and any of the officers, directors, employees, or representatives of the other Party; (ii) create a partnership or joint venture between the Parties; or (iii) authorizes either Party to bind or obligate the other Party, nor shall either Party hold itself out as having such authority. Any and all taxes, except income taxes, imposed or assessed by reason of this Agreement or its performance, including but not limited to sales or use taxes, shall be paid by the respective Party for which same is imposed upon.