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SaaS Agreement
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this SaaS Agreement (“Agreement”), Brokerage Management Solutions, Inc. (“Company”) will use commercially reasonable efforts to provide Customer (as such term is defined in the Order Form or, if applicable, the SaaS Service Agreement/ SaaS Service Services Order Form – any such document to be referred to herein as the “Order Form”) access to the TotalBrokerage software as a service [the “Service(s) or Software”] in accordance with the terms of this Agreement, including the Service Level Agreement incorporated herein, and based on the specific Plan Levels selected by Customer. Company may revise Plan Levels at any time, including without limitation by removing features and functions or reducing service levels. Company and Customer shall collectively be referred to as the “Parties” or each a “Party.”
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the Company’s standard practice.
1.3 As part of the onboarding process, Customer will identify an administrative username and password for Customer’s account. Company reserves the right to refuse the registration of, or may cancel passwords, if Company deems appropriate. Use of Services through Customer’s account is personal to Customer. Customer may not resell, assign, distribute, transfer, share, or otherwise provide Customer subscription information or Customer Login ID and/or Password to any third party. Customer is solely responsible for safeguarding and maintaining the confidentiality of Customer Login ID and Password. Customer is also solely responsible for any activity that occurs in Customer’s account, whether or not Customer authorized that activity. Customer should immediately notify Company of any unauthorized use of Customer account. Customer will not share its Login ID and/or Password, nor permit access by anyone other than Customer.
1.4 Customer agrees that its electronic signature is the equivalent of a manual signature, and that Company may rely on it as such in connection with any and all agreements executed by Customer in connection with Software and its transactions with Company. Customer will advise of any changes to its email address.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer shall not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services/Software (or any software, documentation or data related to the Services/Software); (b) modify, translate, or create derivative works based on the Services/Software (except to the extent expressly permitted by Company or authorized within the Services); (c) use the Services/Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (d) remove any proprietary notices or labels.
2.2 Customer shall not: (a) permit any third party to access or use the Services/Software in violation of any U.S. law or regulation; or (b) export the Services/Software or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Software in, or export the Software to, a country subject to a United States embargo (as of the date of this Agreement, the Crimea Region of Ukraine, Cuba, Iran, North Korea, Sudan, and Syria).
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect, including Company’s Privacy Policy, and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each receiving Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (“Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding the Software, pricing, Order Form, features, functionality, and performance of the Software. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Information”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it, by lawful means, prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. Parties may disclose confidential information to third parties who have a legitimate need to know the terms of this Agreement or Order Form (such as Associate’s attorney, accountant, financial, or tax advisors who shall also honor the confidentiality of such documents) or in connection with any action brought to enforce the terms of this Agreement or Order Form, but only to the extent necessary to prosecute that action.
3.2 Customer shall own all right, title, and interest in and to the Customer Information and the Customer Data, as defined below. Company shall own and retain all right, title, and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementation services or support, (c) all intellectual property rights related to any of the foregoing, including trademarks, logos, domain names, and brand features, and (d) and all copyrighted works and content included therein. This Agreement (including any other agreement between Customer and Company) does not grant Customer any right, title, or interest in or to the Services or Software. This Agreement (including any other agreement between Customer and Company) does not grant Customer any right to reproduce, modify, distribute, or publicly display the Software nor grant Customer any right that is not specifically set forth herein. Company appreciates when users send feedback, but such feedback, comments, or suggestions may be used by Company without obligation or compensation to Customer.
3.3 Notwithstanding anything to the contrary contained herein, Company shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services/Software and related systems and technologies (including, without limitation, information concerning Customer Information, Customer Data, and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services/Software and for other development, diagnostic and corrective purposes in connection with the Services/Software and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then-applicable fees described in the Order Form for the Services and implementation services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the service capacity set forth on the Order Form (including exceeding the number of designated users or exceeding the number of marketing emails or text messages included in Customer’s selected plan) or otherwise requires the payment of additional fees (per the terms of this Agreement or the Order Form), Customer shall be billed for such usage/additional fees and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term/Subscription Period or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). Notwithstanding the preceding sentence, Company shall not be required to provide notice of a rate change if such change was expressly agreed to by Customer in the Order Form. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) calendar days after the date of the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit (if warranted after review by Company). Inquiries should be directed to Company’s customer success department.
4.2 Customer shall be responsible for all taxes associated with Services, including any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, and/or value-added tax. Company may choose to bill through an invoice (but is not obligated to send or provide Customer an invoice), in which case, full payment for invoices issued in any given month must be received by Company fifteen (15) calendar days after the mailing date of the invoice. Such invoice shall be considered late if not received by the fifteenth day and shall be subject to the late fees provided below.
4.3 Customer authorizes Company to manually debit and/or auto-debit all Fees due from Customer to Company from Customer’s preferred ACH bank account and/or any other bank account owned by Customer, which Company may have access to. Customer authorizes Company to continue manually debiting and/or auto debiting all Fees due from Customer to Company as frequently as may be necessary and in any denomination as may be necessary to bring Customer’s account current with Company. Fees will be initially deducted upon Customer providing its ACH/payment information. Thereafter, Fees will be debited in accordance with the Order Form (i.e one-time, Monthly, Quarterly, and/or Annually), on the day of the month that corresponds with the initial ACH payment (such date to be considered the due date for the purpose of calculating Late Fees and processing account suspensions).
4.4 Any payments over five (5) calendar days late are subject to Late Fees of $25 or 5% of amount due (as permitted by law), whichever is greater. In addition to Late Fees, if payments are five (5) calendar days (or more) late, Company may, without notice, suspend Customer’s account and restrict Customer’s access to Services until such time as Customer’s financial account has been brought fully current with Company. Customer acknowledges that intentionally blocking, disputing, or reversing Fees authorized by Customer under the terms of this Agreement and/or the Order Form is not a remedy available to Customer and will be deemed a material breach of this Agreement and Order Form by Customer. If Customer intentionally blocks, disputes, or reverses a payment(s) of Fees that were authorized by Customer under the Agreement and/or Order Form, Company may, without notice, suspend Customer’s account immediately in addition to any other remedies available to Company in law or in equity. If suspended, Customer agrees to pay Company a $100 reactivation fee to re-enable Customer’s Services after account is brought current by Customer.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Term/Subscription Period as specified in the Order Form. Agreement shall automatically renew for additional (12)-month term(s) (unless Customer and Company have otherwise agreed to a longer renewal term) at the expiration of the then-current term (the Initial Term plus the 12-month renewal terms collectively, the “Term”), unless either Party requests termination/non-renewal at least thirty (30) days prior to the end of the then-current term. Customer may, in accordance with the above, request cancellation/non-renewal by sending an email to support@totalbrokerage.com stating Customer’s intent to cancel at the end of Customer’s current term or by submitting a cancellation/non-renewal request form through Customer’s account within TotalBrokerage.
5.2 In addition to any other remedies it may have, either Party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other Party materially breaches any of the terms or conditions of this Agreement. Notwithstanding the forgoing, Customer shall provide Company with written notice of any alleged material breach by Company and Company shall have ninety (90) calendar days to resolve such breach (if Company establishes, upon review, that there is a material breach of which requires remedy) before Customer may seek to terminate this Agreement as provided above. If Agreement is terminated due to Company’s uncured material breach, Customer will pay, in full, for the Services up to and including the last day on which the Services are provided to Customer (or Customer has access to Software) plus any additional amounts owed to Company by Customer at the time of termination. Upon any termination, after Customer has paid all outstanding amounts due Company, Company will make all Customer Data available to Customer for electronic retrieval for a commercially reasonable period of time [not to exceed ninety (90) days] after termination of this Agreement at the rates set forth herein. After a commercially reasonable period of time, Company may, but is not obligated to, delete stored Customer Data. Customer will pay Company at a rate of $250.00 per hour for electronic retrieval of Customer Data; provided, Company’s minimum charge for such electronic retrieval services shall be $1,000.00. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. “Customer Data” as used in this Agreement shall mean proprietary information entered or stored through the Software by Customer or on Customer’s behalf.
6. WARRANTY AND DISCLAIMER
COMPANY SHALL USE REASONABLE EFFORTS CONSISTENT WITH PREVAILING INDUSTRY STANDARDS TO MAINTAIN THE SERVICES IN A MANNER WHICH MINIMIZES ERRORS AND INTERRUPTIONS IN THE SERVICES AND SHALL PERFORM THE IMPLEMENTATION SERVICES IN A PROFESSIONAL AND WORKMANLIKE MANNER. SERVICES MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED MAINTENANCE OR FOR UNSCHEDULED EMERGENCY MAINTENANCE, EITHER BY COMPANY OR BY THIRD-PARTY PROVIDERS, OR BECAUSE OF OTHER CAUSES BEYOND COMPANY’S REASONABLE CONTROL, BUT COMPANY SHALL USE REASONABLE EFFORTS TO PROVIDE ADVANCE NOTICE IN WRITING OR BY E-MAIL OF ANY SCHEDULED SERVICE DISRUPTION. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY, INCLUDING ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. MISCELLANEOUS
If any provision of this Agreement/Order Form is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement/Order Form will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicenseable by Customer under any circumstances whatsoever. Company may transfer and assign any of its rights and obligations under this Agreement without the consent of Customer. This Agreement, including the Order Form or related document outlining the Services, is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein or in the Order Form. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees at all levels of collections and litigation. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the state of Florida without regard to its conflict of laws provisions. The Parties agree that any legal action brought under or in conjunction with this Agreement will be brought in a federal or state court of appropriate jurisdiction in Palm Beach County, Florida and venue will be proper in that court. Customer hereby authorizes Company to issue press releases and other marketing materials disclosing that Customer is a customer of Company, and Customer authorizes Company to include Customer’s name and logo on Company’s website and other sales and marketing materials as a current customer. Customer agrees to serve as a reference to Company’s prospective customers, if requested by Company. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, epidemics, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.
NEITHER PARTY SHALL BRING OR PARTICIPATE IN ANY CLASS ACTION OR OTHER REPRESENTATIVE PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER PROCEEDING UNDER CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY (collectively, “THIS AGREEMENT’S CLAIMS”). THIS AGREEMENTS’ CLAIMS INCLUDE, WITHOUT LIMITATION, COUNTERCLAIMS, CLAIMS RELATED TO THE PARTIES’ NEGOTIATIONS AND INDUCEMENTS TO ENTER INTO THIS AGREEMENT, AND OTHER CHALLENGES TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT.
THE PARTIES MUTUALLY, KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM INVOLVING ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT.
9. SERVICE LEVEL AGREEMENT (SLA)
The Services shall be available and functional with 99.9% uptime, measured monthly, excluding holidays and weekends and scheduled maintenance. There may still be times when the Services are unavailable for routine maintenance, to correct technical difficulties, or for some other reason. Availability of the Services is subject to change at any time at Company’s sole discretion. “Uptime” will mean each of the database, application, and web servers on an operational network that are capable of transmitting data. “Function” will mean: (a) the ability to execute HTTP services as defined by industry standards; (b) online with operational network capability; and (c) available to accept protocol compliant requests. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance or upgrades. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Company will credit Customer 5% of service fees for each period of sixty (60) or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with written notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement. Company may revise this SLA at any time.
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