Last Updated: June 2021
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT.
1. Subscription Rights and Obligations.
1.1 Subscription Rights; Subject to the terms and conditions of this Agreement, SAVVI will make available to Customer and its Users on a non-exclusive and non-transferable basis during the Subscription Term the Services in accordance with the Documentation and any outstanding Order, and Customer may use the Services in accordance with the Documentation, any such Order, and this Agreement.
1.2 Customer Responsibilities. Customer will (a) be responsible for connecting to and using the Services and Platform made available to it in accordance with this Agreement, (b) be responsible for Users’ acts and omissions, (c) be responsible for the accuracy, quality, integrity and legality of Customer and User data and the means by which such data was acquired, (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Services or Platform, and notify SAVVI promptly of any such unauthorized access or use, (e) use the Services and Platform only in accordance with this Agreement, the Documentation and applicable laws and regulations, and (f) reasonably cooperate with SAVVI as necessary for SAVVI to perform its obligations.
1.3 Restrictions. Customer will not (and will not permit any User or third party to) (a) make the Services or Platform available to any third party other than Users, (b) resell, lease, distribute, transfer or otherwise make available the Services or Platform on a time-sharing or service bureau basis, (c) use the Services or Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services or Platform to store or transmit malicious code, (e) use or access the Services or Platform in any way that threatens the integrity, performance, or availability of the Services or Platform or any data therein, (f) attempt to gain unauthorized access to the Services, Platform or the data stored or processed therein, other than authorized Customer data, (g) decompile, disassemble, or reverse engineer the Services or Platform, in whole or in part, or (h) use or reference the Services, Documentation, or Platform to develop (or have developed) a competing service or product. SAVVI may restrict or prohibit access by Customer and/or its Users if SAVVI reasonably suspects a breach or an adverse impact on other SAVVI Customers.
1.4 On-Premise Software. As and if specified in an Order or the Documentation, the Services and/or Platform may include or require certain software to be installed, operated and hosted on-premise at Customer’s site or on Customer’s equipment by Customer (e.g., to facilitate connectivity to cloud services). Any such on-premise software provided by SAVVI will only be used during the Subscription Term in accordance with this Agreement and will be returned or deleted after the Subscription Term. In addition, certain items of software code provided with, or needed to access or use, the Services or Platform may be subject to “open source” or “free software” licenses (“Third Party Code”), a list of which is available on SAVVI’s website and/or in the documentation as necessary. The Third Party Code is not subject to the terms and conditions of this Agreement, except for this Section, the disclaimer of warranties and the limitations of liability. Instead, each item of Third Party Code is licensed under the terms of the license that accompanies such Third Party Code. Nothing in this document limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable license for the Third Party Code, including any rights to copy, modify, or distribute Third Party Code under the applicable license. If SAVVI makes modifications to such Third Party Code and if the applicable license requires that such modifications be made available and SAVVI does not already publish such modifications via the applicable Third Party Code community, then SAVVI will make its modifications available on its website or as otherwise required.
2. Implementation, Training, and Other Professional Services.
2.1 General. Use of certain functions and features of the Services and Platform may require training, integration, implementation, and other Professional Services. An Order for Professional Services will describe the applicable Professional Services, fees, costs and expenses payable by Customer to SAVVI and any assumptions or dependencies relating to such Professional Services. SAVVI will have no obligation to perform any Professional Services until an Order for such Professional Services has been executed.
2.2 Customer Responsibilities. Customer will cooperate with SAVVI as necessary for SAVVI to provide Professional Services. Subject to the applicable Order, Customer will make available in a timely manner at no charge to SAVVI all facilities, office space and equipment, programs, data, files, documentation, test data, or other information and resources required by SAVVI for the performance of the Professional Services. Customer will be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all data, content, materials and information supplied by or on behalf of Customer. Customer will reimburse SAVVI for any additional efforts or costs it incurs as a result of Customer’s failure to perform its obligations.
3. Customer Data.
3.1 General. Customer acknowledges and understands that use of the Services or Platform will permit or require Customer to provide certain Customer data, content, materials, and other information (“Customer Data”) to SAVVI for purposes of processing or storage. All Customer Data will be considered proprietary to Customer. SAVVI will only use Customer Data for performing the Services or Professional Services or as authorized under this Agreement. SAVVI may aggregate and anonymize any data or information relating to Customer Data (“De-Identified Data”) to monitor, improve, or expand the Services, Platform or SAVVI’s commercial offerings, and/or use Customer Data to train and improve artificial intelligence algorithms and models (“AI Learnings”), as and if applicable. De-Identified Data and AI Learnings may be combined and analyzed with other SAVVI customers’ data and learnings by SAVVI.
3.2 Data Safeguards; Disaster Recovery and Continuity. SAVVI will maintain reasonable and appropriate data safeguards and procedures designed to prevent the unauthorized use or disclosure of Customer Data in SAVVI’s possession or control (“Data Safeguards”). However, Customer acknowledges that no safeguards can ensure absolute security. SAVVI will periodically maintain archives and back-ups of Customer Data in accordance with SAVVI’s generally applicable disaster recovery and business continuity procedures and industry standards. Customer Data may be stored on media or hardware containing other Customer data both during and after the Subscription Term, provided such media and hardware are subject to the Data Safeguards.
3.3 End of Subscription Term. SAVVI is not obligated to store any Customer Data for more than 30 days following the termination or expiration of the Subscription Term.
4.1 Fees and Expenses. In consideration for the rights granted to Customer and the performance of SAVVI’s other obligations under this Agreement, Customer will pay to SAVVI, without offset or deduction, the fees and expenses as determined under each Order and this Agreement. The fees for Professional Services will be based upon SAVVI’s standard professional fee rates then in effect, unless otherwise stated in an applicable Order. Customer authorizes SAVVI to charge Customer for all applicable fees and expenses using Customer’s selected payment method. SAVVI may charge Customer’s selected payment method automatically for any Renewal Subscription Terms, unless the Customer notifies SAVVI that it intends not to renew in accordance with the terms of this Agreement. SAVVI reserves the right to increase the fees each year after the Initial Subscription Term, but must provide notification of such increases at least thirty (30) days in advance. Whenever any services are provided by SAVVI at a Customer location or any other location requested by Customer other than one of SAVVI’s locations, Customer will reimburse SAVVI for reasonable travel, lodging, meal and related expenses incurred by SAVVI representatives in providing such services.
4.2 Taxes. The fees and other amounts payable by Customer to SAVVI do not include any taxes of any jurisdiction that may be assessed or imposed upon the Services, Platform, Documentation, Professional Services, or otherwise, including sales, use, excise, value added, personal property, export, import and withholding taxes, excluding only taxes based upon SAVVI’s net income. Customer will directly pay any such taxes assessed. Customer will promptly reimburse SAVVI for any taxes payable or collectable by SAVVI (other than taxes based upon SAVVI’s net income), unless Customer is exempt from taxes and provides valid documentation regarding its tax exempt status.
4.3 Payment Terms. If any Customer payment is past due, interest at the rate of eighteen percent (18%) per annum (or, if lower, the maximum rate permitted by applicable law) will accrue. All fees and other amounts paid by Customer under this Agreement are non-refundable. All dollar amounts referred to in this Agreement are in United States Dollars.
5. Warranties and Limitations.
5.1 Performance Warranties. The Services and Platform will perform as described in the then current Documentation in all material respects. The Professional Services will be performed in a good and workmanlike manner. Customer will timely notify SAVVI of any known non-conformance to these warranties. SAVVI’s only obligation under these warranties is to correct any failure to so perform, or if such correction is not possible in a commercially reasonable timeframe, the breach of this warranty is material, and Customer elects to terminate for such uncured material breach, then SAVVI will refund any fees paid for the specific non-conforming services during the periods of non-conformance and refund any pre-paid fees for Services not provided. This Section sets forth Customer’s sole and exclusive remedy for a breach of this warranty.
5.2 Exclusions for Unauthorized Actions and Results of Use. SAVVI will have no liability under any provision of this Agreement with respect to any performance problem, delay, or other matter to the extent attributable to any unauthorized or improper use or modification of the Services, Platform, Documentation, or Professional Services deliverables, any unauthorized combination with other services, deliverables, platforms, software, hardware, or technology, or any act or omission by Customer, its affiliates, or their Users or other representatives or contractors. Customer is solely responsible for the results obtained from the use of the Services, Platform, Documentation, and Professional Services, including any personal injury, death or property damage relating thereto, and will indemnify SAVVI for any claims relating thereto.
5.3 Disclaimer. Except as expressly stated above in Section 5.1, the Services, Platform, Documentation, and Professional Services are provided “as is” and SAVVI makes no representations or warranties, oral or written, express or implied, arising from course of dealing, course of performance, usage of trade, or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title, non-interference, or non-infringement. SAVVI makes no representations or warranties, nor will SAVVI have any liability with respect to, any third party data, products or services.
5.4 Limitation of Liability. SAVVI will not be liable for any indirect, incidental, special, exemplary, or consequential damages (including without limitation any loss of revenue, savings or data) arising in connection with this Agreement or the use of any Services, Platform, Documentation, or Professional Services based on any theory of contract, tort, strict liability, negligence, or otherwise, even if advised of the possibility of such damages. SAVVI’s total liability under this Agreement and all Orders will not exceed the fees actually paid by the Customer to SAVVI during the prior 12 months under the applicable Order(s) giving rise to the claim or this Agreement if such claim does not relate to a specific Order. If any Services or rights to the Platform are provided on or for an evaluation, trial, or proof of concept basis, then Customer’s sole remedy in connection therewith will be termination of the evaluation, trial or proof of concept.
6.1 General. All Confidential Information of a Party (“Disclosing Party”) in the possession of the other (“Receiving Party“), whether or not authorized, will be held in strict confidence, and the Receiving Party will take reasonable measures to preserve the confidentiality of the Confidential Information. The Disclosing Party’s Confidential Information will not be used or disclosed by the Receiving Party for any purpose except (a) as necessary to exercise rights or perform obligations under this Agreement, or (b) as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order. The Receiving Party will limit its use of and access to the Disclosing Party’s Confidential Information to only those of its employees or representatives whose responsibilities require such use or access and who are bound to confidentiality obligations no less restrictive than the terms contained in this Section. Either Party may disclose this Agreement to its actual or potential investors, creditors, professional advisors, or attorneys who are subject to a duty of confidentiality.
7. Ownership of Proprietary Items.
7.1 General. All Proprietary Items provided to or accessed by Customer under this Agreement are being made available on a strictly confidential and limited use basis in accordance with this Agreement and have great commercial value to SAVVI. This Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights to any Proprietary Items are transferred to Customer under this Agreement. SAVVI reserves all rights not expressly granted by this Agreement.
7.2 Title and Ownership. All right, title, and interest in and to the Proprietary Items (including all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights) are and will remain the sole and exclusive property of SAVVI (or its licensors). Any derivative works, modifications, or enhancements relating to the Proprietary Items, De-identified Data or AI Learnings (whether created alone by either Party or jointly by or on behalf of both Parties or their representatives through Professional Services or otherwise) will be solely and exclusively owned by SAVVI. Customer hereby assigns to SAVVI any rights, title and interest, including all intellectual property rights in any feedback, suggestions, ideas, derivative works, modifications, enhancements, or improvements related to the Proprietary Items that Customer or any of its Users or representatives provide, propose, create, conceive, author or develop relating to this Agreement or their use of the Services or Platform. Customer will execute and deliver (or cause its representatives to execute and deliver) any additional documents deemed reasonably necessary or appropriate to perfect, maintain, protect, or enforce SAVVI’s rights and the intent of this Agreement.
7.3 Customer Data and Proprietary Materials. Customer retains all of its right, title and interest in and to Customer Data and Customer’s internal systems, processes, and software, and the Proprietary Items do not include such Customer Data or Customer internal systems, processes, or software.
8.1 By Customer. By Customer. Customer will defend and indemnify SAVVI from and against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any third party claim resulting from Customer’s use of the Services, Platform or Proprietary Items, or Customer Data (e.g., if Customer lacks adequate rights in or to Customer Data or such Customer Data is libelous, defamatory, or infringing). Notwithstanding the foregoing, Customer will not settle any third-party claim, unless such settlement completely and forever releases SAVVI with respect thereto or unless SAVVI provides its prior written consent to such settlement. In any action for which Customer provides defense on behalf of SAVVI, SAVVI may participate in such defense at its own expense by counsel of its choice.
9.1 General. Either Party may terminate this Agreement immediately on giving notice in writing to the other Party if the other Party commits a material breach (including any non-payment of fees due) and, in the case of a material breach capable of being cured, failed to cure that breach within sixty (60) days after the receipt of a request in writing to cure such breach. Any outstanding Order will be terminated if this Agreement is terminated or as otherwise provided in such Order. This Agreement will be deemed terminated if there are no outstanding Orders or all Subscription Terms have expired or terminated.
9.2 Post Termination Obligations. Upon any termination or expiration of this Agreement, Customer will: (a) discontinue all access and use of all Proprietary Items, (b) promptly return to SAVVI all copies of the Documentation and any other Proprietary Items then in Customer’s possession or control, and (c) give written notice to SAVVI certifying that all copies of the Proprietary Information have been permanently deleted. Customer will remain liable for all payments due to SAVVI with respect to the period ending on the date of termination (including a pro-rata portion for any periodic fees that had not been invoiced based on the extent to which Customer used the Services and Platform prior to termination). The provisions under the Sections regarding end of the subscription term, warranties and limitations, confidentiality, ownership of proprietary items, indemnification, termination, miscellaneous, and any other provision under this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any termination or expiration of this Agreement.
10.1 Export. The Proprietary Items and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from SAVVI, or any products incorporating such data, in violation of the United States export laws or regulations.
10.2 U.S. Government End Users. The Services, Platform and related Documentation, are “commercial items” as defined in 48 CFR 2.101 and their use is subject to the policies set forth in 48 CFR 12.211, 48 CFR 12.212 and 48 CFR 227.7202, or any analogous provisions, as applicable.
10.3 No Assignment. This Agreement, and Customer’s rights and obligations, may not be assigned by Customer without SAVVI’s prior written consent, and any attempted assignment in violation of the foregoing will be null and void. However, SAVVI may assign in connection with a merger, acquisition, or sale of all or substantially all of its assets or stock.
10.4 Force Majeure. SAVVI will not be liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, pandemics, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of SAVVI.
10.5 Relationship. The relationship between the parties under this Agreement is that of independent contractors and not partners, joint venturers or agents.
10.6 Use of Customer’s Name. Customer authorizes SAVVI to use Customer’s name and logo in any routine list of SAVVI customers, as a reference, and on SAVVI’s website to identify Customer as a customer of SAVVI. SAVVI may issue a press release identifying Customer as a SAVVI customer and describe the nature of the Services to be provided.
10.7 Governing Law and Venue. The laws of the State of Delaware will govern this Agreement. Any legal suit, action, or proceeding arising out of or relating to this Agreement will be instituted exclusively in the courts located in Delaware.
10.8 Entire Agreement. This Agreement contains the entire understanding of the parties relating to the subject matter of this Agreement and supersedes all prior written or verbal and all contemporaneous verbal agreements and understandings relating thereto. This Agreement may only be amended in a writing signed by duly authorized representatives of the parties.
10.9 Further Assurances. Each Party will execute and deliver any and all additional papers, documents, and other assurances, and will do any and all acts and things reasonably necessary in connection with the performance of its obligations under this Agreement or to carry out the intent of this Agreement.
10.10 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, such provision will be fully severable and this Agreement will be construed and enforced as if such illegal, invalid, or unenforceable provision never comprised a part of this Agreement and the remaining provisions hereof will remain in full force and effect and will not be affected by the illegal, invalid, or unenforceable provision or by its severance here from. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as part of this Agreement a provision as similar in its terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.
10.11 Notices. SAVVI may send notices under this Agreement to Customer’s email contact points provided by Customer and such notices will be deemed received 24 hours after they are sent. Customer may send notices under this Agreement to SAVVI by registered or certified mail, return receipt requested, postage prepaid, to the following address (and such notices will be deemed received five days after they are sent): 822 College Ave, Suite 218, Kentfield, CA 94904.
10.12 Counterparts. This Agreement and each Order may be executed in counterparts, each of which will be deemed an original, but both of which together will be deemed to be one and the same agreement.
11.1 Definitions. The following terms have the following meanings:
“Confidential Information” means all confidential or proprietary information disclosed by one Party to the other in connection with this Agreement, unless it is or later becomes publicly available through no fault of the other Party or it was or later is rightfully developed or obtained by the other Party from independent sources free from any duty of confidentiality. Without limiting the generality of the foregoing, Confidential Information will include: (a) Customer data, content and non-public information, documentation, and materials, which may be disclosed or made available from any source or in any form relating to the Customer’s business, financial information, patients, employees, programs, documentation, techniques, trade secrets, and systems, and (b) SAVVI’s Proprietary Items. Confidential Information will include the terms and pricing in this Agreement, but not the fact that this Agreement has been signed, the identity of the Parties or the identity of the services or products.
“Documentation” means SAVVI’s standard user guides and manuals relating to the Services and Platform, including on-line help, as updated and amended from time to time.
“Order” means an order for access to the Platform agreed to by the Parties.
“Platform” means SAVVI’s proprietary application software, web-site, solution, hardware, and/or technology infrastructure supporting the Services and all related SAVVI content.
“Proprietary Items” means, collectively, the Services, Platform, and Documentation, the visual expressions, screen formats, report formats and other design features of the Services and Platform, all ideas, methods, algorithms, formulae and concepts used in developing and/or incorporated into the Services, Platform, or Documentation, all future modifications, revisions, updates, refinements, improvements and enhancements of the Services, Platform, or Documentation, all derivative works (as such term is used in U.S. copyright laws) based upon any of the foregoing, deliverables and work product arising from the Professional Services, and all copies of the foregoing.
“Services” means the services that are ordered by Customer under a subscription Order, including limited access and use rights to the applicable Platform in accordance with the Documentation and this Agreement. Services do not include Professional Services.
“Professional Services” means services designated as such. Professional Services may include training, data conversion, integration, implementation, customizations, and/or enhancement services. Professional Services do not include the Services.
“Subscription Term” means the duration of Customer’s right to receive, access, and use the Services and Platform, as set forth on an Order (the “Initial Subscription Term”) and any subsequent Renewal Subscription Terms. In the event that such duration is not specified on the Order, the Subscription Term will be twelve (12) months. The Subscription Term will automatically renew for a term that is equal to [twelve (12) months], unless one Party provides the other Party at least sixty (60) days written notice of its intent to not renew the Subscription Term (a “Renewal Subscription Term”).
“User” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Platform, for the benefit of Customer in the operation of Customer’s business, under the rights granted to Customer under this Agreement; and (b) for whom access to the Services has been purchased under this Agreement.