Software as a Service (SaaS) Agreement
This SaaS Agreement describes the relationship between ZAGENO, Inc. (“ZAGENO”) and Customer (“Customer”), (each of ZAGENO and the Customer, a “Party” and collectively the “Parties”) where ZAGENO will configure its marketplace platform for the Customer and provide access to that configured platform under the terms and conditions as described below (the “Agreement”). This Agreement becomes effective on the effective date as specified in the quotation (the “Effective Date”).
1. Definition of Terms. The following terms have the following meanings:
1.1 "Administrative User" means one or more individual(s) designated by the Customer in writing as having access to create and/or modify authorized Vendors or authorizing and changing the Authorized Users that may have access to the Service.
1.2 "Affiliate" means, as to a Party, any entity directly or indirectly controlling, controlled by or under common control with such Party, where "control" means (a) beneficial ownership of greater than fifty percent (50%) of the voting equity interests in such entity or (b) the possession, directly or indirectly, of the power to independently direct or cause the direction of the management and policies of an entity, whether through the ownership of a voting equity interest, by contract or otherwise.
1.3 “Aggregate Anonymized Data” means information that has been collected from a variety of sources and disaggregated so as to create an anonymous data set(s) in a manner that cannot readily identify a single customer or any patients as part of the data set(s).
1.4 "Authorized User" means any individual who is an employee or contractor of the Customer.
1.5 “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 shall include: (a) the Customer Data (as defined herein) 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, (b) ZAGENO Proprietary Items; and (c) all workflows and data structures created or provided by ZAGENO pursuant to this Agreement. Confidential Information shall 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 Platforms.
1.6 “The Customer Data” means all the Customer supplied information relating to its purchases from Vendors and any pricing terms specific to that Vendor for the Customer.
1.7 “Documentation” means ZAGENO’s standard user guides and manuals relating to the Services and Platform, including online help, as updated and amended from time to time.
1.8 “Insights” means the insights and benchmarking data created by, or for ZAGENO, based on ZAGENO data and Aggregate Anonymized Data.
1.9 “Platform” means ZAGENO’s proprietary software, technology, tools, logic, workflows, algorithms, database schemes, database, systems, set of analytics, hardware, and technology infrastructure used to provide ZAGENO’s marketplace ordering and logistics platform.
1.10 “Services” means the services that are ordered by the Customer under a subscription Order, including professional services for configuration of the Platform.
1.11 “Source System” means a Customer controlled database or data source containing the Customer Data that is connected to the Platform.
1.12 “Term” means the period of time beginning on the Effective Date and ending twelve (12) months thereafter (the “Initial Term”) and any subsequent Renewal Terms. The Initial Term shall automatically renew for a term that is equal to twelve (12) months unless one Party provides the other Party at least ninety (90) days written notice of its intent to not renew the Term (a “Renewal Term”).
1.13 “Vendors” means those third parties who have entered into a separate agreement with ZAGENO in order to offer their products to the Customer through the Platform.
1.14 “ZAGENO 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, Insights, Aggregate Anonymized Data, 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 Platform, and all copies of the foregoing.
2.1 Implementation. Prior to making the Platform and Services available to the Customer, ZAGENO will configure the Platform as set forth on Schedule B. All Source Systems must be identified before the Platform can “go live” and be made available to ZAGENO. The Customer will make the Customer’s Source Systems readily accessible to ZAGENO so that ZAGENO can access and load the relevant Customer Data on the Platform. Once the Platform is configured, subject to the Customer’s timely compliance with its obligations as set forth within this Section 2.1, ZAGENO will make the Services generally available to the Customer. The Customer agrees: (a) to cooperate with ZAGENO in providing ZAGENO with access to the Customer Data and establish a means of regularly extracting such the Customer Data on an ongoing basis; (b) to make reasonably available both the Customer subject matter experts and subject matter experts in the Customer Source Systems; and (c) to make available in a timely manner, all technical documentations, business process and other critical documents that are necessary to aid in the implementation of the connectors for the relevant Source Systems. The Customer is responsible for providing all reasonably requested assistance to ZAGENO pursuant to this Section 2.1 and for timely compliance with the implementation plan provided by ZAGENO to the Customer so that ZAGENO is able to meet the time frame set forth in the implementation plan.
2.2 Acceptance and Go-Live. Once the configuration is completed, ZAGENO will submit the configured Platform to the Customer for final acceptance testing to verify that the Solution meets the agreed upon specifications as set forth in Schedule B (the “Acceptance Criteria”). “Acceptance Testing Period” means the time period, beginning on the date that the Customer receives ZAGENO’s written notification that the Platform has been configured and verified or tested by ZAGENO, and is ready for the Customer’s use (“Notification”), and ending ten (10) days from Notification. During the applicable Acceptance Testing Period, the Platform shall be subject to testing by the Customer and shall meet, without material deviation, the Acceptance Criteria. The Customer shall notify ZAGENO within the Acceptance Testing Period whether the Platform meets the applicable Acceptance Criteria and if not, detailed reasons for the rejection (e.g., the specific failure and the reason for the rejection) (a “Non-Compliance Notice”). ZAGENO shall, upon receipt of a Non-Compliance Notice act diligently and promptly at its own expense to correct such deficiencies within five (5) business days (or such other time period mutually agreed to in writing by the Parties). The Customer will not unreasonably withhold acceptance of the Platform and corrected deficiencies. If the Customer fails to notify ZAGENO in writing that the Platform does not meet the Acceptance Criteria within the Acceptance Testing Period, then the Platform shall be deemed accepted. Upon resolution by ZAGENO of each said material deviation, the Customer shall have an additional fifteen (15) day period to determine whether the material deviation(s) was resolved by ZAGENO in accordance with this Section. “Acceptance” means: (a) the Customer has notified ZAGENO that it has “accepted” the given the Platform in accordance with the Acceptance Criteria; or (b) the Acceptance Testing Period has expired, and the Customer has not provided ZAGENO with a Non-Compliance Notice. The “Go-Live Date” is the date of the Acceptance of the Platform in a given Order. If ZAGENO fails or is unable to correct any material deviation within ninety (90) days from the beginning of the applicable Acceptance Testing Period, then the Customer shall be entitled at its option to declare such failure a material breach of this Agreement, whereupon the Customer shall be entitled to terminate the Order.
3. Access to the Platform.
3.1 Rights; ZAGENO Obligations. Subject to the terms and conditions of this Agreement, on the Go-Live Date, ZAGENO shall make available to the Customer on a non-exclusive and non-transferable basis during the Term the Platform and the Services in accordance with the Documentation and applicable Order(s). In addition, ZAGENO will:
(a) host, operate, maintain, and support the Platform (itself or through third party vendors (e.g., AWS) as necessary to make available the Services in accordance with service levels;
(b) specify to the Customer the procedures according to which the Customer may establish and obtain access to and use the features and functions of the Services and Platform, including, without limitation, providing any access codes, passwords, web-sites, connectivity standards or protocols, or any other relevant procedures; and
(c) from time-to-time in accordance with ZAGENO’s generally applicable procedures, make available and implement upgrades, enhancements, and error corrections at no additional charge when such upgrades, enhancements and error corrections are generally made available to its other clients at no additional charge; provided, however, that nothing in this Agreement shall entitle the Customer to a new Module other than the Module(s) ordered under this Agreement.
3.2 Access. Unless otherwise specified in the applicable order, Services and the Platform are provided to purchase products from Vendors for the Customer’s own use and not for resale. Any individuals that use or access the Services or Platform must access the Services and Platform through the Access Protocols. The Customer may not use indirect access to access the Services or Platform. Subject to the terms and conditions contained in this Agreement, ZAGENO grants to the Customer a non-exclusive, non-transferable right to: (a) permit Authorized Users to access the features and functions of the Service through the Platform solely for the Customer's internal business purposes; and (b) permit Administrative Users to access the features and functions of the Service, solely for the Customer's internal business purposes. On or as soon as reasonably practicable after the Effective Date, ZAGENO shall provide to the Customer the necessary passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures as may be necessary to allow the Customer and its Authorized Users to access the ZAGENO Service (the "Access Protocols").
3.3 The Customer Responsibilities. The Customer shall (a) be responsible for connecting to and using the Services and Platform made available to it in accordance with this Agreement; (b) make all Source Systems available to ZAGENO; (c) be responsible for all acts and omissions of its Administrative Users and Authorized Users (other than those who may have a separate agreement with ZAGENO); (d) be responsible for the accuracy, quality, integrity and legality of the Customer Data and the means by which such data was acquired; (e) use commercially reasonable efforts to prevent unauthorized access to or use of the Services or Platform, and notify ZAGENO promptly of any such unauthorized access or use; (f) use the Services and Platform only in accordance with this Agreement, the Documentation and applicable laws and regulations; and (g) reasonably cooperate with ZAGENO as necessary for ZAGENO to perform its obligations. The Customer shall make available in a timely manner at no charge to ZAGENO all facilities, databases and equipment, programs, data, files, documentation, test data, or other information and resources required by ZAGENO for the performance of the Services. The Customer shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all data, materials and information supplied by the Customer. The Customer shall reimburse ZAGENO for any additional efforts or costs it incurs as a result of the Customer’s failure to perform its obligations.
3.4 Restrictions. The Customer shall not: (a) make the Services or Platform available to any third party other than Authorized Users associated with the Customer; (b) use any unauthorized plug-ins; (c) sell, resell, lease, rent, license, sublicense, distribute, transfer or otherwise make available the Services or Platform on a time-sharing, SaaS, service bureau or other similar basis to a third party (other than ZAGENO Authorized Parties); (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; (g) load, or permit the loading, of the Customer Data in violation of any applicable, law, rule or contract; (h) remove, modify or obscure any Platform or service identifier, copyright, trademark or other proprietary rights notice or other notices, instructions, disclaimers or legends; (i) modify or create derivative works of the underlying Platform (or third party software embodied therein); (j) decompile, disassemble, or reverse engineer the Services or Platform, in whole or in part or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats, data structures or other aspects of the Services or Platform; or (k) access, use or copy and any portion of the Platform in order to build a competitive Platform or to benchmark with any third party Platform or service. ZAGENO may restrict or prohibit access to the Customer if ZAGENO reasonably suspects the Customer is breaching its obligations under this Section 3.4. No rights are assigned or granted to the Customer herein other than as expressly set forth herein.
3.5 Third Party Code. The Platform may contain or be provided with components subject to the terms and conditions of “open source” software licenses (“Open Source Software”) or other third-party software. ZAGENO shall provide a list of the Open Source Software for a particular version of the Platform to the Customer upon the Customer’s written request. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering. A list of the Open Source Software and third-party software is provided in the documentation.
4. Purchasing Products from Vendors. Fees and payment terms.
4.1 Services to Connect the Customer and Approved Vendors. ZAGENO provides a marketplace that allows Vendors approved by the Customer (“Approved Vendors”) to offer, sell and buy items (“Products”) to the Customer. As a marketplace, ZAGENO does not own or sell the Products, so the actual contract for sale is directly between the Vendors and the Customer.
4.2 ZAGENO Only Provides a Venue. While ZAGENO may provide pricing and guidance in the Services, such information is solely informational. Subject to Section 4.3, ZAGENO does not take part in the interaction between the Customer and Approved Vendors. ZAGENO makes no representations about the suitability, reliability, timeliness or accuracy of any information provided by Approved Vendors to the Customer and does not independently verify this information.
4.3 Transactions. The Platform allows you to place orders for Products from a variety of third party Approved Vendors through two primary means: (a) links to the websites of Approved Vendors for the purchase of Products; and (b) ordering using the marketplace tools provided through the Platform to order directly from the Approved Vendors. In each case all aspects of such purchases are handled by the Approved Vendors (not ZAGENO). ZAGENO is processing the order and collecting the information on behalf of the Approved Vendors and passing that ordering information on to the Approved Vendors. Your agreement for the purchase of Products from the Approved Vendors in all cases will be directly with the Approved Vendors. ZAGENO will not be a party to any contracts between the Customer and the Approved Vendors. Without limiting the generality of the foregoing, ZAGENO is not responsible for the shipping of Products, or refunds or exchanges relating to Products. In certain circumstances, ZAGENO may place an order with an Approved Vendor on your behalf and in accordance with your instructions. As such, you are authorizing ZAGENO to act on your behalf and place orders with Approved Vendors in your name, correspond with Approved Vendors and enquire about the status of your order, and pay for any order on your behalf. Any transactions that ZAGENO completes on your behalf are subject to this Section 4.3 and this Agreement. If ZAGENO places an order with an Approved Vendor on your behalf, ZAGENO is not a party to any such transaction, and the contract for sale is between you and the Approved Vendor.
4.4 Release. ZAGENO expressly disclaims any liability that may arise between Approved Vendors and the Customer. In the event that the Customer has a dispute with one or more Approved Vendors, the Customer releases ZAGENO (and our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
4.5 Fees. Customer will pay Zageno all Fees pursuant to the applicable Order Form(s) or herein. If payment of any Fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and 1.5% per month or the highest rate permitted by law or regulation (“Law”) and Customer will pay all reasonable expenses of collection. In addition, if any payment has not been received by Zageno within 30 days from the time such payment is due, Zageno may suspend access to the Platform or Services until such payment is made. At its discretion, Zageno may increase the pricing for SaaS Fees or Service Fees stated on the applicable Order Form for any Renewal Term upon giving Customer at least 90 days’ notice (which may be sent by email) prior to the end of the then-current term.
4.6 Payment Terms. Unless otherwise set forth in an Order Form, Customer will pay Zageno all Fees via one of the payment method(s) permitted on Customer’s account on the Platform, which may include (but is not be limited to) payment (a) by credit card, (b) through an online account through a third-party provider or payment processor, or (c) via direct billing/ACH. By providing any credit card, online account or direct billing/ACH information, Customer authorizes Zageno to automatically charge or debit the selected payment method for the full amount due on a recurring basis (if applicable) until Customer notifies Zageno in writing. Collection of credit card information and the processing of payment of Fees by credit card will be performed by third party payment processers (the “Payment Processors”). Customer will be subject to the applicable Payment Processor’s terms and conditions for the processing of payments, as the same may be modified by such Payment Processor from time to time (collectively, the “Payment Processer Terms”). Information provided to any Payment Processor is governed by the applicable Payment Processor Terms. Zageno is not responsible for the performance of any Payment Processor. Customer will provide accurate information with respect to the applicable method of payment and agrees to promptly contact Zageno if any such information needs to be updated. Customer will ensure that it has sufficient funds or credit (as applicable) associated with the selected method of payment. Customer understands that the amounts charged or debited may vary and that this authorization will remain in effect during the Term. If an ACH payment is returned from the applicable bank account for insufficient or uncollected funds or for erroneous information, Zageno may reinitiate the returned ACH debit to the applicable bank account. Any amounts owed to Zageno that cannot be collected by ACH debit may be charged to any backup credit card on file for Customer. All Fees will be paid in the currency specified in the applicable invoice. Unless otherwise stated herein, all Fees are non-refundable.
4.7 Taxes. All amounts payable by Customer to Zageno hereunder are exclusive of any sales, use and other taxes or duties, however designated, including withholding taxes, royalties, know how payments, customs, privilege, excise, sales, use, value added and property taxes (collectively “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Zageno. Customer will not withhold any Taxes from any amounts due Zageno.
5.1 Data Ownership. All the Customer Data shall be considered proprietary to the Customer. ZAGENO will only use the Customer Data as authorized under this Agreement.
5.2 The Customer Data License Grant. The Customer hereby grants ZAGENO a worldwide irrevocable, royalty free, non-exclusive right and license to: (a) use, reformat, transform, and create derivative works of the Customer Data to perform the Services as ordered by the Customer; and (b) create Aggregate Anonymized Data (e.g., to create generic collection site benchmarks).
5.3 Data Safeguards. ZAGENO shall maintain reasonable and appropriate data safeguards and procedures designed to prevent the unauthorized use or disclosure of the Customer Data as required under applicable laws (“Data Safeguards”). ZAGENO will periodically maintain archives and back-ups of the Customer Data in accordance with ZAGENO’s generally applicable disaster recovery and business continuity procedures and industry standards. The Customer Data may be stored on media or hardware containing other ZAGENO customers’ data both during and after the Term, provided such media and hardware are subject to the Data Safeguards.
5.4 End of Term. Upon the termination or expiration of the Agreement, the Customer acknowledges and agrees that ZAGENO has no obligation to return to the Customer, or retain, any of the Customer Data.
5.5 ZAGENO Data, Insights, and Aggregate Anonymous Data. All ZAGENO data, Insights, and Aggregate Anonymized Data shall be considered proprietary to ZAGENO.
5.6 ZAGENO Data License Grant. ZAGENO hereby grants the Customer a worldwide, irrevocable, royalty free, non- exclusive right and license to use, reformat, transform, and create derivative works of the Insights made available through the Solution for the Customer’s business.
6. Warranties and Limitations.
6.1 Performance Warranties. The Services and Platform shall perform as described in the then current Documentation in all material respects. The Customer will timely notify ZAGENO of any known non-conformance to these warranties. ZAGENO’s only obligation under this warranty, and the Customer’s sole and exclusive remedy, is for ZAGENO to correct any failure to so perform, or if such correction is not possible in a commercially reasonable timeframe, refund the fees paid for the specific non-conforming services during the periods of non-conformance.
6.2 Exclusion for Products ordered from Approved Vendors. The Products are offered for sale by the Approved Vendors, not ZAGENO. ZAGENO makes no warranty that the Products will meet the Customer’s requirements. ZAGENO makes no warranty regarding the quality of any Products, the data or information generated by the use of the Products, or the accuracy, timeliness, truthfulness, completeness or reliability of any information provided to the Customer by Approved Vendors through the Platform. In addition, ZAGENO does not ship or inspect any Products and therefore, ZAGENO makes no warranties as to the quality, safety or legality of items advertised, or that an Approved Vendor will actually complete a transaction or return all items. THE SERVICE AND PLATFORM IS INTENDED ONLY AS A TOOL, WHICH CAN BE USED TO ASSIST IN COORDINATING THE ORDERING OF PRODUCTS. ZAGENO HAS NO CONTROL OVER THE APPROPRIATENESS, ACCURACY , QUALITY , TIMELINESS, SCOPE, PRICE OR RISKS OF OR ASSOCIATED WITH ANY PRODUCT.
6.3 Disclaimer. EXCEPT AS EXPRESSLY STATED ABOVE IN THIS SECTION 6, THE SERVICES, PLATFORM AND DOCUMENTATION ARE PROVIDED "AS IS" AND NEITHER ZAGENO NOR ITS VENDORS, SUPPLIERS OR PARTNERS MAKES ANY 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. ZAGENO MAKES NO REPRESENTATIONS OR WARRANTIES, NOR SHALL ZAGENO HAVE ANY LIABILITY WITH RESPECT TO, ANY THIRD-PARTY DATA, THIRD PARTY COMPONENTS, THIRD PARTY PLATFORMS OR THIRD-PARTY SERVICES.
6.4 Damage Limitation. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY 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 OR DOCUMENTATION BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Except for a third-party infringement claim under Section 9 (Indemnification), each Party’s total liability to the other Party (or their suppliers, partners or vendors) under this Agreement and all orders shall under no circumstances exceed the fees actually paid by the Customer to ZAGENO under this Agreement in the twelve months prior to the claim being made.
6.5 Other Limitations. The warranties made by ZAGENO in this Agreement, and the obligations of ZAGENO under this Agreement, run only to the Customer and not to any third party. Under no circumstances shall any the Customer Affiliate, the Customer contractor, or user, or any other third party be considered a third-party beneficiary of this Agreement. No action or claim of any type relating to this Agreement may be brought or made by the Customer more than one (1) year after the Customer first has knowledge of the basis for the action or claim. The Customer and ZAGENO have freely and openly negotiated this Agreement, including the pricing, with the knowledge that the liability is to be limited in accordance with the provisions of this Agreement.
All Confidential Information of a Party ("Disclosing Party") in the possession of the other ("Receiving Party"), whether or not authorized, shall be held in strict confidence, and the Receiving Party shall take all steps reasonably necessary to preserve the confidentiality of the Confidential Information. Information will not constitute the other Party’s Confidential Information if it (a) is already known by the Receiving Party without obligation of confidentiality; (b) is independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information; (c) is publicly known without breach of this Agreement; or (d) is lawfully received from a third party without obligation of confidentiality. The Receiving Party will not use or disclose any Confidential Information except as expressly authorized by this Agreement and will protect the Disclosing Party’s Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event with safeguards less than a reasonably level of care under similar circumstances. The Receiving Party will take prompt and appropriate action to prevent unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, the Receiving Party will not be in violation of this Section 7 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body or otherwise required by law, provided that the Receiving Party gives the Disclosing Party prior written notice of such disclosure in order to permit the Disclosing Party to seek an appropriate protective order. Information that is disclosed pursuant to a valid court or governmental order shall not lose its status as Confidential Information.
8. Ownership of ZAGENO Proprietary Items.
8.1 General. All ZAGENO Proprietary Items provided to or accessed by the 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 ZAGENO (or its partners or suppliers). This Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights to any ZAGENO Proprietary Items are transferred to the Customer under this Agreement. ZAGENO, on behalf of itself and its vendors, partners and suppliers, reserves all rights not expressly granted by this Agreement.
8.2 Title and Ownership. As between ZAGENO and the Customer, all right, title, and interest in and to the ZAGENO 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 ZAGENO. Any derivative works, modifications, or enhancements relating to the ZAGENO Proprietary Items (whether created alone by either Party or jointly by or on behalf of both Parties or their representatives) will be solely and exclusively owned by ZAGENO.
8.3 Feedback. The Customer may provide ZAGENO with feedback, comments and recommendations regarding the functionality and performance of the Platform and the Services, including, without limitation, identifying potential errors and improvements (collectively, the “Feedback”). ZAGENO (and its partners and suppliers) shall have the unrestricted right to use the Feedback provided by the Customer to ZAGENO in connection with the Platform or this Agreement at its sole discretion, including to improve or enhance the Platform and other ZAGENO (or its partners’ and suppliers’) Platforms, and, accordingly, ZAGENO (and its partners and suppliers) shall have a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback without restriction.
9.1 Indemnification by ZAGENO. ZAGENO shall defend, indemnify and hold the Customer, its Affiliates, its and their agents, employees and representatives (collectively the “the Customer Indemnitees'') harmless from and against any and all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) (“Losses”) incurred by the Customer Indemnitees as a result of any claims, demands, actions or other proceedings (“Claims”) by any third party to the extent arising out of: (a) the negligence or intentional misconduct of ZAGENO in the performance of its and their rights or obligations contemplated by the Agreement; or (b) that the Platform infringes a patent or copyright of any third party; except in each case to the extent such Losses arise out of (i) the negligence or intentional misconduct of the Customer or its representatives, (ii) any breach by the Customer of the terms and provisions of this Agreement, or (iii) the Products. Notwithstanding the foregoing, ZAGENO shall have no obligation or liability to the extent that the alleged Losses arise from (1) the combination, operation, or use of the ZAGENO Proprietary Items with platforms, services, deliverables, materials, technologies, business methods or processes not furnished by ZAGENO; and (2) modifications which were not made by ZAGENO. If such a claim is made or appears possible, the Customer agrees to permit ZAGENO, at ZAGENO’s sole discretion, to enable it to continue to use the Module or the Platform, as applicable, or to modify or replace any such infringing material to make it non-infringing. If ZAGENO determines that none of these alternatives is reasonably available, the Customer shall, upon written request from ZAGENO, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim.
9.2 Conditions for Indemnification. As a condition to a Party’s right to receive indemnification under this Section 9, such Party shall: (a) promptly notify the other Party as soon as the Party seeking indemnity becomes aware of a Claim for which indemnification may be sought pursuant thereto; (b) cooperate with the indemnifying Party in the defense of such Claim, at the expense of the indemnifying Party; and (c) permit the indemnifying Party to control the defense of such Claim, including, without limitation, the right to select defense counsel. In no event, however, may the indemnifying Party compromise or settle any Claim in a manner that admits fault or negligence on the part of the indemnified Party or that otherwise materially prejudices the indemnified Party’s rights under this Agreement without the prior written consent of the indemnified Party. The indemnifying Party shall have no liability under this Section 9 with respect to Claims settled or compromised without its prior written consent.
10.1 Either Party may terminate this Agreement immediately on giving notice in writing to the other Party if the other Party: (a) commits a material breach (including any non-payment of fees due other than fees subject to a Good Faith Dispute) 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; (b) files for bankruptcy; (c) becomes or is declared insolvent, or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it; (d) makes an assignment for the benefit of all or substantially all of its creditors; or (e) enters into an agreement for the cancellation, extension, or readjustment of substantially all of its obligations; provided, however, if the non-terminating Party provides adequate assurances regarding its ability to continue performing the other Party may not terminate.
10.2 Upon any termination or expiration of this Agreement, whether under this Section 10 or otherwise, ZAGENO shall make the Customer Data available to the Customer for a period of twenty (20) days after the date of termination or expiration of this Agreement and the Customer shall: (a) discontinue all access and use of all ZAGENO Proprietary Items and Confidential Information of ZAGENO; (b) promptly return to ZAGENO all copies of the Documentation and any other ZAGENO Proprietary Items then in the Customer's possession or control; and (c) certify in writing that all copies of the ZAGENO Proprietary Items and Confidential Information of ZAGENO have been permanently deleted. The Customer is expressly prohibited from retaining any Confidential Information or ZAGENO Proprietary Items of ZAGENO past the Term of this Agreement. The Customer shall remain liable for all payments due to ZAGENO with respect to the period ending on the date of termination. For any termination other than a termination for good cause by the Customer in accordance with Section 10.1, the balance of all remaining Service Fees (see Quote) relating to the then current Term will be due and payable. The provisions of Sections 6.1 - 6.4, 8, 9, 10, and 11 shall survive any termination or expiration of this Agreement.
11. Other Provisions.
11.1 Compliance with Laws. Each Party shall comply with all applicable federal, state and local laws and regulations in connection with their business, operations, and obligations under this Agreement.
11.2 Notice. All notices, consents and other communications under or regarding this Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt or the first business day after being sent by a reputable overnight delivery service. Either Party may change its address for notices by giving written notice of the new address to the other Party.
11.3 Parties in Interest. This Agreement shall bind, benefit and be enforceable by and against ZAGENO and the Customer and, to the extent permitted hereby, their respective successors and assigns. Neither Party may assign any of its rights or obligations under this Agreement, and any attempt at such assignment will be void without the other Party’s prior written consent, which consent will not be unreasonably withheld. Notwithstanding the foregoing, ZAGENO may assign this Agreement or of any ZAGENO rights under this Agreement to: (a) any ZAGENO successor by merger or consolidation or to any person or entity that acquires all or substantially all of its capital stock or assets; and (b) any person or entity to which ZAGENO transfers any of its rights in the ZAGENO Proprietary Items.
11.4 Relationship. The relationship between the Parties under this Agreement is that of independent contractors and not partners, joint ventures or agents.
11.5 Entire Understanding. This Agreement, which includes and incorporates Orders, attachments, and any other schedules, exhibits and addenda attached to it, states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. In the event of any conflict between this Agreement and an Order, the Order shall govern.
11.6 Modification and Waiver. No modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless in writing and signed by an authorized representative of both Parties. This Agreement may not be modified or amended without written agreement of the Parties. No waiver of any breach of this Agreement, and no course of dealing between the Parties, shall be construed as a waiver of any subsequent breach of this Agreement.
11.7 Severability. If any portion of any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, (a) such unenforceable portion of the provision will be deemed severed from this Agreement, (b) the validity and enforceability of the remaining portion of the provision and the other provisions of this Agreement will not be affected or impaired, and (c) this Agreement will be amended in order to effect, to the maximum extent allowable by law, the original intent of such provision.
11.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
11.9 Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware excluding choice of law; provided, however, that the terms of any applicable law now or hereafter enacted that is based on or similar to the uniform computer information transactions act drafted by the national conference of commissioners on uniform state laws shall not apply.
11.10 Force Majeure. Except with respect to the Customer’s payment obligations, neither Party shall be liable for, nor shall either Party be considered in breach of this Agreement due to any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including any act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the Internet or other networked environment), power or other utility, labor problem, unavailability of supplies or any other cause which could not have been prevented by the non-performing Party with reasonable care.
11.11 International Provisions. The following provisions shall apply only if you are located in the countries listed below.
(a) United Kingdom. A third party who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of this Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
(b) Germany. Notwithstanding anything to the contrary in this Agreement, ZAGENO is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).
Schedule A – Service Levels
The following terms will have the following meanings. Where definitions refer to a time period, the time period is to be specified in usage of the term. All other defined terms shall have the applicable meaning set forth in the Agreement.
“Downtime” means any amount of time during a calendar quarter period in which the Platform is not available on a ZAGENO server due to a network component under control of ZAGENO.
“Scheduled Downtime” means Downtime during a calendar quarter period that (a) occurs outside the hours of 9AM to 5PM Monday through the Customer local time, (b) does not exceed twelve hours in any 24-hour period, and (c) does not exceed 48 hours per calendar month.
“Availability” means the time in the calendar quarter period, less Downtime, plus Scheduled Downtime, with the result expressed as a percentage of the time in the period.
Time in Period – Downtime + Scheduled Downtime = Availability % Time in Period
ZAGENO will not be responsible for failures to meet service levels attributable to:
(a) Acts or omissions of the Customer, its agents, employees or contractors (including, without limitation, willful misconduct, negligence, breach of contract, or infringements of third-party proprietary rights);
(b) The Customer’s failure to follow the ZAGENO Documentation;
(c) Data latency or data unavailability as a result of an uncommunicated or uncoordinated change(s) in the Customer systems will not be factored into ZAGENO Downtime; and/or
(d) Downtime due to a force majeure event; operation under a disaster recovery plan; or provision of Services after the expiration of the Term of the Agreement.
ZAGENO does not and cannot control the flow of data to or from the Platform and other portions of the Internet. At times, actions or inactions caused by these third parties can produce situations in which the Platform’s connection to the Internet (or portions thereof) may be impaired or disrupted. Although ZAGENO will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events, ZAGENO cannot guarantee that they will not occur. Accordingly, ZAGENO disclaims any and all liability resulting from or related to such events.
3. Service Levels.
The Customer will use commercially reasonable efforts to notify ZAGENO of expected or forecasted peak activity periods. Subject to the terms of this SLA, ZAGENO guarantees a 99% monthly average of Availability of its Service. ZAGENO does not monitor availability of individual Customer usage but only monitors the platform availability as a whole.
4. Support Obligations.
Upon receipt of a problem or service report (a “Support Instance”), ZAGENO will promptly open a problem ticket with a unique identifier (a “Problem Ticket”) and classify the problem in accordance with the priority level classifications set forth in Section 5.
5. Problem Escalation, Response, and Resolution.
Upon receipt of Support Instances, the ZAGENO support team will make commercially reasonable efforts to respond to the Customer to confirm receipt, request additional information (if necessary), and provide status within the following Response Service Levels:
|Priority||Response Service Levels (during Service Commitment coverage)|
|2||1 business day|
Resolution to an identified problem shall be deemed complete when both the Customer and ZAGENO have reviewed the proposed solution, tested the results, and are satisfied that the Customer issue has been resolved. ZAGENO will make commercially reasonable efforts to deliver a resolution to the Support Instance within the following Resolution Service Levels:
|Priority||Resolution Service Level Goals|
|0||5 business days|
|1||1 development/release cycle|
|2||2 development/release cycles|
6. Service Commitments.
ZAGENO will use commercially reasonable efforts to provide telephone support Monday through Friday, 9AM to 5:00 PM in the Customer local time, excluding ZAGENO holidays. Support Instances submitted outside of the normal ZAGENO support hours will be responded to as soon as possible and no later than the start of the next business day.
7. Priority Classifications.
Priority 0. ZAGENO will classify the following Support Instances as Priority 0:
The Platform is not available or non-operational and is preventing access to or use of the Platform, without a reasonable workaround.
Priority 1. ZAGENO will classify the following Support Instances as Priority 1:
The Platform is down or non-operational on an intermittent basis and is preventing access to or use of the Platform, without a reasonable workaround, for more than five minutes more than 3 times in an hour.
The Platform is operational but is not returning data within 5 times the average response time it had been operating in the last thirty (30) days, except for failures as a result of Section 2.
Priority 2. ZAGENO will classify the following Support Instances as Priority 2:
The Platform is operational but is preventing the completion of non-critical processes, without a reasonable workaround, within 5 times the average response time it had been operating in the last thirty (30) days, except for failures as a result of Section 2.
Schedule B – Implementation and Deployment
Zageno will implement the platform to properly integrate and align with the customer's IT environment, needs, and product structure selected.