SaaS Terms and Conditions
This Agreement (the “Agreement”) is entered into by and between Bolstra, LLC (“Bolstra”), located at 12400 N Meridian St, Ste 120, Carmel IN 46032 and the entity agreeing to these terms (“Customer”). If Customer executes an Order Form (defined below), the terms and conditions of such Order Form are incorporated herein by reference. To the extent the terms of the Order Form conflict with the terms of this Agreement, the terms of this Agreement will prevail. This Agreement is effective as of the date Customer signs the Order Form (the “Effective Date”).
WHEREAS, Bolstra designs, develops, and markets the Bolstra Platform (defined below), access and use of which is licensed to customers via a software subscription including hosting, maintenance, and support; and
WHEREAS, Customer desires access to the Bolstra Platform.
THE PARTIES THEREFORE AGREE AS FOLLOWS:
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Bolstra Platform” means the fulfillment platform and all related software provided by Bolstra.
“Customer Data” means all data entered into the Bolstra Platform by Customer or data provided to Bolstra under this Agreement.
“Order Form” means an order form executed by Customer and Bolstra that identifies (i) the level of access Customer has purchased to the Bolstra Platform and (ii) the Services Customer has purchased.
“Services” means services other than the Bolstra Platform that may be offered and purchased via an Order Form.
- Grant of Rights. Subject to the terms and conditions of this Agreement, Bolstra grants to Customer a non-exclusive, non-transferable, limited term right, without the right to sub-license, for Customer to access, display and use the Bolstra Platform remotely via the Internet solely for its internal business purposes. Bolstra and its licensors reserve all rights in and to the Bolstra Platform not expressly granted to Customer under this Agreement. The Bolstra Platform will be made available via the Internet in a software as a service, or “SaaS” model.
- Restrictions on Use. Customer will not, and will not permit any third party to, (i) reproduce, download, modify, create derivative works of or distribute the Bolstra Platform, or attempt to reverse engineer, decompile, disassemble or access the source code for the Bolstra Platform or any component thereof; (ii) permit any party to independently access the Bolstra Platform; (iii) transmit the Bolstra Platform, in whole or in part, electronically by any means; (iv) access the Bolstra Platform via any means other than over the Internet using Bolstra’s supported technology; (v) access the Bolstra Platform or any Bolstra user interface using any automated process or means other than through the use of Bolstra’s web services; (vi) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Bolstra Platform available to any third party; (vii) introduce software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs to the Bolstra Platform; (viii) interfere with or disrupt the integrity or performance of the Bolstra Platform; (ix) attempt to gain unauthorized access to the Bolstra Platform or its related systems or networks; or (x) access the Bolstra Platform with the intent to build a competitive product or service, or copy or substantially copy any ideas, features, functions or graphics of the Bolstra Platform.
- Authorized Use Only. Customer is responsible for the acts and omissions of all of its employees or authorized users who access the Bolstra Platform in relation to this Agreement. Customer will implement reasonable controls to ensure that the Bolstra Platform is only accessed by its authorized employees and users. Customer will notify Bolstra as soon as reasonably possible of any unauthorized access to or use of the Bolstra Platform that becomes known to Customer. Customer will take all reasonable steps to ensure that its (and its authorized employees’ and users’) access to and use of the Bolstra Platform is in compliance with the terms of this Agreement. Bolstra will have the right to immediately discontinue access to and use of the Bolstra Platform if Customer breaches the terms of this Section 2(b), 2(c) or otherwise impedes or disrupts any third party’s use of the Bolstra Platform.
- Customer Resources. To the best of its efforts, Customer will: (i) cooperate with Bolstra on all reasonable requests for information as required for an effective implementation of the Bolstra Platform; and (ii) have in place the appropriate browser and other software and hardware for accessing the Bolstra Platform.
3. CUSTOMER OBLIGATIONS
Customer shall be solely responsible for: (a) managing its (and its authorized employees’ and users’) access and use of the Bolstra Platform; (b) providing industry best practice standards to ensure reasonable security for integration between Customer’s applications and the Bolstra Platform; (c) configuring its own accounts; (d) complying with all applicable local, state, federal and foreign laws in using the Bolstra Platform.
4. TECHNICAL SUPPORT AND TRAINING
Bolstra shall provide reasonable and standard technical support and “train the trainer” education for the Bolstra Platform at no additional charge. Additional support, training and other services may be purchased and specified in an Order Form.
5. FEES AND PAYMENT
- Bolstra shall invoice Customer for the fees as specified in an Order Form. Unless other payment terms and conditions are specified in an Order Form, Customer shall pay all invoices within thirty (30) days of the invoice date, without any right of set-off or deduction. Except as otherwise provided herein, fees are non-refundable, and the number of licenses purchased cannot be decreased during the relevant term stated on the applicable Order Form. Bolstra may charge interest at the lesser of the maximum amount allowed by law or one and one-half percent (1.5%) per month on payments not timely made. In addition to any other rights or remedies of Bolstra, Bolstra may discontinue access to the Bolstra Platform without liability to Customer, if any invoice is not paid within forty-five (45) days of the invoice date, until such amounts are paid in full. In any collection action relating to this Agreement, Bolstra shall be entitled to recover its costs of collection, including reasonable attorneys’ fees.
- Customer shall also pay all taxes (including without limitation sales, use, excise, value added, and gross receipts) levied on this Agreement whether or not these are expressly stated in any Order Form, except taxes based on Bolstra’s income. Customer may provide a tax exemption number or affidavit of exemption, but Customer shall indemnify and hold Bolstra harmless for any taxes, penalties and interest that may arise if the claimed exemptions are disallowed.
(a) Service Warranties Provided. Bolstra warrants that any Services provided will be performed in a professional manner and in accordance with generally recognized commercial practices and standards. Customer’s sole remedy for Bolstra’s breach of this warranty is re-performance of the Services, which Bolstra will provide as promptly as reasonably possible. Bolstra will have no liability for defects or non-conformances resulting from: (i) unauthorized, improper or inadequate maintenance or calibration by Customer or any third party; (ii) software, hardware, interfacing, or supplies not supplied by Bolstra; (iii) Customer’s failure to comply with the applicable environmental specifications; or (iv) improper preparation or maintenance by Customer or a third party.
(b) Limited Bolstra Platform Warranty. Bolstra warrants to Customer that the Bolstra Platform will function substantially in accordance with Bolstra’s publicly available specifications.
(c) Warranty Disclaimers. In the event of a breach of the warranty set forth in this Section 6(b), Bolstra’s sole and exclusive responsibility, and Customer’s sole and exclusive remedy, is for Bolstra to correct or replace, in a timely manner and at no additional charge to Customer, any functionality of the Bolstra Platform found to be defective. EXCEPT AS EXPRESSLY CONTAINED IN THIS AGREEMENT, ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COMMON LAW OR IN ANY OTHER WAY, INCLUDING ANY IMPLIED WARRANTIES AS TO QUALITY, PERFORMANCE, TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE, ARE EXCLUDED FROM THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. BOLSTRA DOES NOT WARRANT THAT THE BOLSTRA PLATFORM WILL MEET THE REQUIREMENTS OF CUSTOMER, ANY USERS OR ANY MEMBER OR THAT THE OPERATION OR USE OF THE BOLSTRA PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE. WHILE BOLSTRA SHALL USE ITS REASONABLE EFFORTS TO MEET DEADLINES FOR PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, TIME FOR SUCH PERFORMANCE SHALL NOT BE OF THE ESSENCE OF THIS AGREEMENT AND BOSLTRA SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY IN PERFORMANCE UNDER THIS AGREEMENT.
7) LIMITATIONS OF LIABILITY
EXCEPT FOR DAMAGES ARISING FROM THE PARTIES’ RESPECTIVE OBLIGATIONS SET FORTH IN SECTION 8 (Indemnification) AND BREACHES OF SECTION 9 (Confidentiality), NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (OR TO ANY PERSON CLAIMING UNDER OR THROUGH THE OTHER PARTY) UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOSS OF GOODWILL, WORK STOPPAGE, LOST OR CORRUPTED DATA, LOST PROFITS, LOST SAVINGS, LOST REBATES, LOST BUSINESS OR LOST OPPORTUNITY (WHETHER ARISING DIRECTLY OR INDIRECTLY) OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, TREBLE OR EXEMPLARY LOSSES OR DAMAGES, IRRESPECTIVE OF THE NATURE OR THEORY OF LIABILITY WHICH MAY GIVE RISE TO SUCH LOSSES OR DAMAGES (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF SUCH PARTY HAS BEEN INFORMED OR WAS AWARE OF THE POSSIBILITY THEREOF. IN NO EVENT WILL BOLSTRA’S OR CUSTOMER’S AGGREGATE LIABILITY UNDER OR AS A RESULT OF THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, STRICT LIABILITY OR ANY OTHER THEORY, EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER TO BOLSTRA IN THE LAST 12 MONTHS FOR THE BOLSTRA PLATFORM COMPONENT TO WHICH THE CLAIM RELATES. THESE LIMITATIONS OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT, AND BOLSTRA WOULD NOT PERMIT CUSTOMER TO ACCESS THE BOLSTRA PLATFORM AND CUSTOMER WOULD NOT ENGAGE IN THIS AGREEMENT WITHOUT SUCH LIMITATIONS. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY TO THE FULLEST EXTENT PERMISSIBLE AT LAW.
(a) Bolstra’s Obligations. Bolstra will indemnify and defend Customer, and its directors, officers, shareholders, and employees from and against any and all claims, losses, damages, expenses, suits, judgments, and costs, including reasonable legal and other professional fees and expenses, arising out of or relating to a claim that the Bolstra Platform infringes or misappropriates the intellectual property rights of a third party.
(b) Bolstra Remedies. If the Bolstra Platform becomes, or in Bolstra’s opinion is likely to become, the subject of an infringement or misappropriation claim, Bolstra may, at its sole option, and expense, either: (i) procure for Customer and Users the right to continue using the Bolstra Platform; (ii) replace or modify the Bolstra Platform so that it becomes non-infringing or does not use the alleged infringing or misappropriated trade secrets; or (iii) terminate Customer’s and each User’s right to use the infringing System and give Customer a refund for the unused Fees actually paid by Customer for the infringing components of the Bolstra Platform less an allowance for the period of time Customer has used the Bolstra Platform. This Section 8 states Customer’s sole and exclusive remedies, and Bolstra’s entire liability, for any and all infringement and misappropriation claims and actions.
(c) Exceptions. Bolstra has no obligation with respect to any infringement or misappropriation claim based upon: (i) use of the Bolstra Platform in combination with software or equipment not supplied or directed by Bolstra if such claim would have been avoided by not combining such use; (ii) unauthorized modification of the Bolstra Platform if such claim would have been avoided by making no such modifications; (iii) continued use of the Bolstra Platform after Bolstra has notified Customer in writing that such claim would have been avoided by ceasing such use; or (iv) the use of the Bolstra Platform in violation of this Agreement, or in a manner for which it was not designed or contemplated, where such claim would have been avoided without such use.
(d) Customer Indemnification. Customer will indemnify and defend Bolstra, and its directors, officers, shareholders and employees from and against any and all claims, losses, damages, expenses, suits, judgments, and costs, including reasonable legal and other professional fees and expenses, arising out of or relating to: (i) a claim alleging that use of Customer Data as permitted by this Agreement infringes the rights of (including, but not limited to, the rights of privacy or publicity), or has caused harm to, a third party; or (ii) Customer’s breach of Sections 2(b), 2(c) or any other material representations in this Agreement.
(e) Conditions. The party seeking indemnification, will: (i) promptly give written notice of the indemnification claim to the other party; (ii) give the other party sole control of the defense and settlement of the claim (provided that the party providing indemnifications may not settle or defend any claim unless it unconditionally releases the other party of all liability); and (iii) provide the other party all available information and assistance.
(a) Definition. Any proprietary information or materials provided by one party to the other party pursuant to this Agreement is considered confidential and proprietary information, including, without limitation, business or technical information, databases, object code, source code and associated documentation in whatever form (“Confidential Information”) of the disclosing party. Without limiting the generality of the foregoing, the Bolstra Platform, Bolstra’s database, reports and forms (including all data therein except for the Customer Data), upgrades and enhancements and related documentation, are the Confidential Information of Bolstra, and the Data is the Confidential Information of Customer.
(b) Use and Non-Disclosure. Each party will: (i) only use the other party’s Confidential Information as expressly permitted in this Agreement; (ii) protect the other’s Confidential Information from unauthorized use or disclosure using at least reasonable care; and (iii) not disclose to any third party the other party’s Confidential Information except to those employees (and in Bolstra’ case, subcontractors and agents) who have a need to know in connection with performing services under this Agreement and who are subject to obligations of confidentiality similar to this Section 9. This Agreement will not prevent either party from disclosing the other party’s Confidential Information to the extent required by a judicial order or other legal obligation, provided that the receiving party promptly notifies the other party in writing and in advance of such disclosure to provide the other party the opportunity to contest or minimize the scope of disclosure.
(c) Exceptions. The obligations and restrictions contained in this Section 9 do not apply to information: (i) which is now or subsequently becomes publicly available other than by breach of this Agreement; (ii) which was already in the recipient’s possession and at its free disposal at the time of disclosure and was not obtained directly or indirectly from discloser; or (iii) which is independently developed by the recipient without use of the other party’s Confidential Information.
Bolstra retains ownership of all right, title and interest to all copyrights, patents, trademarks, trade secrets and other intellectual property rights in and to the Bolstra Platform, Bolstra’s database (and all data therein except for Customer Data), all associated forms, reports and documentation, upgrades and enhancements, all Bolstra trademarks and all processes, know-how, methodology and the like utilized by or created by Bolstra in fulfilling its obligations under this Agreement.
11) CUSTOMER DATA
As between the parties, Customer retains ownership of all right, title and interest in and to the Customer Data. Customer hereby grants Bolstra a non-exclusive, non-transferable, worldwide license to use the Customer Data to perform its obligations in accordance with the terms of this Agreement and to use the Customer Data in an aggregated, non-personally identifiable format for benchmarking, research and data analysis for Bolstra and its customers. Bolstra will not sell or otherwise transfer interest in the Customer Data to a third party in either personally identifiable or aggregate form. Customer warrants that it may freely transmit all Customer Data to Bolstra or will obtain all necessary consents to do so.
12) TERM AND TERMINATION
(a) The original term of this Agreement commences on the Effective Date and, unless otherwise specified on the Order Form, continues for one year and automatically renews for successive one year periods thereafter. The Agreement may be terminated at an earlier date, as set forth below. Unless otherwise specified in this Agreement, any termination of this Agreement terminates all rights to access the Bolstra Platform, regardless of the term specified in the Order Form.
(b) With the exception of a breach of Sections 2(b) or 2(c) of this Agreement (which may result in immediate termination at Bolstra’s sole discretion), Bolstra may only terminate this Agreement as a result of a material breach if (i) Bolstra provides written notification to Customer of the material breach, and; (ii) such material breach is not cured or resolved within thirty (30) days of notification, or, in the case of a failure to pay fees in a timely manner by Customer, the material breach is not cured or resolved in a fifteen (15) day period.
(c) Customer may terminate any Order Form at any time, however termination shall not result in any refund of payments made to Bolstra, but only results in the termination of automatic renewals and any future payments caused by such automatic renewals no longer being due to Bolstra.
(d) In the event of termination of the SaaS Term for material breach, Customer’s access and use of Bolstra Platform and Customer’s rights under this Agreement shall cease immediately upon termination.
(e) In the event of termination, Customer’s access and use of Bolstra Platform and Customer’s rights under this Agreement shall cease at the end of the current term.
Customer shall, subject to Customer’s review and approval, which approval shall not be unreasonably withheld or delayed, to: (a) allow Bolstra to use Customer’s name and logo in Bolstra’s customer list, on Bolstra’s web site, and in Bolstra’s marketing materials; and (b) allow Bolstra to reference Customer in a press release that announces Customer’s decision to use the Bolstra Platform.
14) FORCE MAJEURE
Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control which makes performance commercially impractical.
Notice to the other party to this Agreement shall be in writing and shall be deemed received at the earlier of: (a) when received, if hand delivered; (b) five (5) days after being mailed by U. S. Postal Service, postage prepaid; (c) one (1) business day if sent via overnight courier service (either Federal Express, Express Mail or equivalent); or (d) upon confirmed transmission if sent by facsimile. Notices to Bolstra shall be sent to: Bolstra; 12400 N Meridian St, Ste 120 Carmel IN, 46032; Attention: Legal Dept., and any notice to Customer hereunder shall be sent to the address on an Order Form.
Neither party may assign, transfer, or delegate any of its rights, duties or obligations hereunder, in whole or in part, without the prior written consent of the other party, except that either party may assign this Agreement in whole or in part, in connection with a merger where the contracting entity does not survive such merger, or in connection with the sale of all or substantially all of the contracting entity’s assets related thereto.
17) INDEPENDENT CONTRACTOR
Neither Customer nor Bolstra is or will be construed to be an agent, partner, joint venture or employee of the other. Neither party has any authority to bind or otherwise obligate the other party in any manner, nor may either party represent to anyone that it has a right to do so.
This Agreement shall be governed by the laws of the State of Indiana. Any claim arising from or related to this Agreement must be brought in the state or federal courts located in Indianapolis, Indiana. This Agreement and any exhibits or order forms hereto constitute the entire understanding between the parties with respect to the subject matter hereof. No provision of this Agreement found to be illegal, unenforceable, or invalid shall affect the legality, enforceability, or validity of any other provision(s) of this Agreement, all of which shall remain in full force and effect. Customer authorizes Bolstra to enter into contracts with subcontractors and other third parties to carry out Bolstra’ obligations under this Agreement. In all matters relating to this Agreement, Customer and Bolstra shall act as independent contractors. Except as specified herein, neither party shall represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity.
SERVICE LEVEL AGREEMENT
Bolstra shall use commercially reasonable efforts to make Services generally available twenty four (24) hours a day, seven (7) days a week, except for: (a) planned downtime, which shall be any period for which Bolstra gives eight (8) hours or more notice that the Services will be unavailable; (b) any unavailability caused by circumstances beyond Bolstra’s reasonable control, including without limitation, computer or telecommunications failure or delays involving hardware or software not within Bolstra’s possession or reasonable control, and network intrusions or denial of service attacks; (c) any period of unavailability lasting fifteen (15) minutes or less; (d) a disruption in the connection between the server on which Services is located based on a failure of the Customer’s connection to the public Internet or a general failure of the public Internet not related specifically to the Bolstra Platform infrastructure; and (e) time the server is unavailable due to unavailability resulting from the improper use of the Bolstra Platform by Customer.
Last Updated: V1.2 – 12/15/16