Perkville MSA | September 25, 2025
PERKVILLE, INC. MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement”) is made and entered into as of effective date set forth in one or more Order Forms (as defined below) (the “Effective Date”), by and between Perkville, Inc., a Delaware corporation with its principal place of business at Perkville 1920 Broadway #1900, Oakland, CA 94612 (“Perkville”), and the entity listed in the applicable Order Form(s) (“Customer”).
This Agreement is effective between Customer and Perkville as of Effective Date.
THIS AGREEMENT GOVERNS CUSTOMER’S LICENSE AND USE OF THE SAAS SERVICES (AS DEFINED BELOW).
BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. ANY REPRESENTATIVE OF CUSTOMER ENTERING INTO THIS AGREEMENT REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF CUSTOMER DOES NOT ACCEPT THESE TERMS AND CONDITIONS, NEITHER CUSTOMER NOR ANY REPRESENTATIVE OR AGENT OF THE CUSTOMER MAY USE THE SAAS SERVICES (AS DEFINED BELOW).
Perkville has developed and hosts the SaaS Services, which are accessed and used by Perkville’s customers.
NOW, THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS.
1.1 “Authorized User” means an employee or contractor of Customer that (i) has been assigned to access and use the SaaS Services, and (ii) has a registered Account (as defined below) enabling access to and use of the SaaS Services.
1.2 “Customer Data” means any data, information, including Account (as defined below) information, and other content uploaded, stored, transmitted to or otherwise processed by or on behalf of Customer through the SaaS Services, or that the SaaS Services may access, including, without limitation, data transferred by or among, or accessed from, Third-Party Applications, in connection with Customer’s use of the SaaS Services.
1.3 “Documentation” means the end user technical documentation provided or made available to Customer regarding the SaaS Services, as may be modified from time to time.
1.4 “Fees” means the fees described in Order Forms.
1.5 “First Bill Date” means the first date that the SaaS Services are available to the Customer’s Authorized Users and when the first invoice shall be dated as defined in an Order Form.
1.6 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.7 “Open Source Materials” shall mean any software, library, utility, tool, or other computer or program code (collectively, “Code”) that is licensed or distributed as “free software,” “freeware,” “open source software,” or under any terms or conditions that impose any requirement that the Code or any software using, linked with, incorporating, distributed with, based on, derived from or accessing the Code:
(i) be made available or distributed in source code form;
(ii) be licensed for the purpose of making derivative works;
(iii) be licensed under terms that allow reverse engineering, reverse assembly or disassembly of any kind; or (iv) be redistributable at no charge. Open Source Materials include, without limitation, any Code licensed or distributed under any of the following licenses or distribution models or similar licenses or distribution models: the MIT License, BSD licenses, and the Apache 2.0 License).
1.8 “Order Form” means an ordering document specifying the SaaS Services to be provided hereunder that is entered into between Customer and Perkville, including any addenda and supplements thereto.
1.9 “Person” means any individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity.
1.10 “Privacy Policy” means the Perkville privacy policy found at www.perkville.com/privacy/ as updated from time to time.
1.11 “Professional Services” any professional services that Perkville is to provide Customer as outlined in one or more SOWs.
1.12 “Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) any information deemed to be “special categories of data” of an EU resident (as defined in European Union Regulation 2016/679); or (iii) any other personal or sensitive information (including, but not limited to, any health information and records, Social Security numbers, driver’s license numbers, personal bank account numbers, passport or visa numbers, passwords and security credentials) that is subject to heightened security requirements or protection by laws, or regulations or contract including, but not limited to, Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act, Family Educational Rights and Privacy Act, information protected under the Health Insurance Portability and Accountability Act (HIPAA), and their international equivalents or other such laws.
1.13 “SaaS Services” means the SaaS services (e.g., the loyalty and referral platform services or the integration platform services) described in the applicable Order Form.
1.14 “Software” means any Perkville (e.g., the loyalty and referral platform software or the integration platform software) or third-party software used by Perkville (other than Third-Party Applications) to provide the SaaS Services.
1.15 “SOW” means Statement(s) of Work, Work Authorization(s) or other contract(s) under which Perkville provides Professional Services.
1.16 “Term” means the term of this Agreement as defined in Section 9.1.
1.17 “Third-Party Applications” means an Internet-based or offline software application that is provided by or on behalf of Customer by a third party and interoperates with the SaaS Services, including, for example, an application that is developed by or for Customer by Perkville.
1.18 “Usage Data” means any data reflecting access or use of the SaaS Services by or on behalf of Customer or any Authorized Users.
1.19 “Work Product” means all software (including any related documentation) that is created, developed, or otherwise generated by Perkville specifically for Customer pursuant to the terms and conditions of an SOW.
2. PERKVILLE SAAS SERVICES.
2.1 SaaS Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, commencing on the First Bill Date and continuing throughout the remainder of the Term: (a) grants Customer a non-exclusive, non-transferable (except as specified in Section 14.9 (Assignment; Successors)), worldwide, royalty-free right to access and use the SaaS Services during the Term in accordance with the limitations in this Agreement and the terms of all applicable Order Form(s) and the Documentation; (b) shall provide support for the SaaS Services to Customer as set forth in Section 13.5; and (c) use commercially reasonable efforts to make the SaaS Services available 24 hours a day, 7 days a week, except for (x) planned downtime and (ii) any unavailability caused by circumstances beyond Perkville’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Perkville’s employees), Internet service provider failure or delay, Third-Party Application failure, or denial of service attacks.
2.2 Authorized Users. Customer may allow Authorized Users to use the SaaS Services for Customer’s internal business purposes; provided, however, each Authorized User must agree to abide by the terms this Agreement. Customer shall immediately notify Perkville of any violation of the terms of this Agreement by any Authorized User, upon becoming aware of such violation. Customer shall be liable for any breach of the terms of this Agreement by any Authorized User.
2.3 Authorized User Accounts. To access the SaaS Services, Customer must provide login credentials associated with Customer’s Perkville account (“Account”). Creation of a valid Account requires Customer providing Perkville a valid email address, for which Customer has the right to access and use. The individual creating such Account must be (a) at least 18 years of age, (b) not named on any U.S. government list of persons or entities prohibited from receiving exports, and (c) not a resident of, or otherwise domiciled in, any countries set forth on the State Sponsored Terrorism List promulgated by the United States Government (which currently includes the Democratic People’s Republic of Korea (North Korea) Iran, Sudan, and Syria).
2.4 Account Information. Customer represents and warrants that (a) all information Customer provides Perkville about Customer in creating an Account (“Account Information”) is complete, true, current and accurate, (b) if a change occurs such that Account Information is no longer complete, true, current or accurate, Customer shall, promptly update the Account to reflect such change, and (c) the individual creating an Account has, and Customer has, the requisite power and authority to create such Account.
2.5 Restrictions. Customer may not, nor permit or encourage any third party to directly, or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know- how or algorithms relevant to the SaaS Services or any Software; (b) modify, translate, or create derivative works based on the SaaS Services or any Software; (c) use the SaaS Services or any Software to develop (or cause Perkville to develop) any Work Product with respect to a standardized sequence of tasks, procedures, or communications by which patient care is delivered, coordinated, or documented within a healthcare setting; (d) use the SaaS Services or any Software for timesharing or service bureau purposes or other computer service to a third party; (e) modify, remove or obstruct any proprietary notices or labels; (f) use any Software or the SaaS Services in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with any Software or the SaaS Services; or (g) process Customer Data through the SaaS Services or Software that (i) is defamatory, harmful to minors, obscene, indecent, pornographic, libelous, threatening, harassing, false, misleading or inaccurate, (ii) contains or causes to be placed on Perkville’s or other third party’s systems any Trojan horses, worms, “back doors”, viruses or programming routines intended to interfere, damage, corrupt, surreptitiously intercept or expropriate any system, data or personal information, (iii) violates any applicable local, state, federal or foreign law, rule or regulation, including privacy laws and privacy standards, (iv) violates any rule or policy of any Third-Party Application; (v) infringes or violates any third-party’s rights, (vi) contains any information of any person under the age of thirteen (13), or (vii) contains any Sensitive Personal Information; provided, that Customer is not prohibited from processing Sensitive Personal Information through Perkville’s loyalty and reward SaaS Services and Software that is used for tracking of medical spa appointments.
2.6 Additional Customer Responsibilities with Regard to the SaaS Services. Customer shall (a) be responsible for Authorized Users’ compliance with the terms of this Agreement, (b) be responsible for the quality and legality of Customer Data and the means by which Customer acquired Customer Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the SaaS Services, and promptly notify Perkville of any such unauthorized access or use of which Customer becomes aware, (d) use the SaaS Services only in accordance with the Documentation, this Agreement, Perkville’s Privacy Policy, applicable laws and government regulations (including, but not limited, to those regarding privacy), (e) comply with the terms of service of Third-Party Applications that Customer uses with the SaaS Services, and (f) maintain applicable accounts with providers of Third-Party Applications used by Customer in connection with the SaaS Services. Customer and Authorized Users are responsible for (i) maintaining the security of and not distributing to third parties Authorized User’s Accounts and passwords and (ii) regularly backing up Customer Data. Customer shall also cooperate with Perkville in establishing login and authentication control mechanisms or other procedures for verifying that only Authorized Users have access to the SaaS Services. Perkville shall not be liable for any loss or damage from Customer’s or any Authorized User’s failure to comply with the beforementioned security obligation or Customer Data backup obligation. Customer and Authorized Users may not access the SaaS Services, if they are Perkville’s direct competitor, except with Perkville’s prior written consent. In addition, Customer and Authorized Users may not access the SaaS Services for competitive purposes (including, but not limited to, monitoring its availability, performance or functionality, or for any other benchmarking). Customer shall not attempt to interfere with or disrupt the SaaS Services or the Software or attempt to gain unauthorized access to any systems or networks that connect thereto.
2.7 Acceptable Use Policies. Customer acknowledges and agrees that Perkville does not monitor or police communications or data transmitted through the SaaS Services and that Perkville shall not be responsible for the content of any such communications or transmissions. Customer shall use the SaaS Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others and shall abide by the Privacy Policy, which terms are incorporated herein by reference.
2.8 Acquisition of Non-Perkville Products and SaaS Services. Perkville or third parties may make available third-party products or services, including, for example, Third-Party Applications and implementation and other services. Any acquisition or use by Customer of such non-Perkville products or services, and any exchange of data between Customer and any non-Perkville provider, is solely between Customer and the applicable non-Perkville provider. Perkville does not warrant or support Third-Party Applications or other non-Perkville products or services, whether or not they are designated by Perkville as “certified” or otherwise, except as specified in an Order Form.
2.9 Third-Party Applications and Customer Data. If Customer installs, connects or enables a Third-Party Application for use with the SaaS Services, Customer grants Perkville permission to allow the provider of that Third-Party Application to access Customer Data as required for the interoperation of such Third-Party Application with the SaaS Services. Perkville is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by or any interaction with any Third-Party Application.
2.10 Integration with Third-Party Applications. The SaaS Services contain features designed to interoperate with Third-Party Applications. To use such features, Customer may be required to obtain access to Third-Party Applications from their respective providers, and may be required to grant Perkville access to the Third-Party Applications (using Customer’s credentials for such Third-Party Applications) that are intended to interoperate with the SaaS Services. If the provider of a Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding SaaS Services’ features on reasonable terms, Perkville may cease providing those features of the SaaS Services without entitling Customer to any refund, credit, or other compensation.
2.11 Additional Terms Regarding Third- Party Applications. Customer warrants and covenants that it has and shall have reviewed the applicable terms and conditions governing the use of all Third-Party Applications and is in and shall remain in compliance with such terms and conditions for so long as any SaaS Services are integrated, connected to or otherwise interoperating with the applicable Third-Party Applications. Customer hereby appoints Perkville as its agent to directly interact with Customer’s Third-Party Application providers, on Customer’s behalf (“Agent Purpose”). Customer shall timely provide Perkville with information and documentation as Perkville may reasonably request to enable Perkville to carry out the Agent Purpose. As the principal party with regard to any interaction by Perkville as an agent of Customer in connection with this Agreement regarding the Agent Purpose, Customer is solely responsible for ensuring that Customer has provided all notices and obtained all consents required under applicable law and any agreements with Third-Party Application providers to allow Perkville to carry out the Agent Purpose.
2.12 Open Source Materials. Perkville shall not, without Customer’s express prior written consent, (i) incorporate, combine, or distribute with any Work Product, or any derivative thereof, any Open Source Materials; or (ii) use Open Source Materials in the development of Work Product, in such a way that would cause the Work Product, or any derivative thereof, to be subject to all or part of the license obligations or other intellectual property-related terms with respect to such Open Source Materials.
2.13 Trial Subscriptions. Where indicated in the applicable Order Form, Customer may receive free access or a trial or evaluation subscription to the SaaS Services (a “Trial Subscription”). If Customer receives a Trial Subscription, then Customer may use the Service in accordance with the terms and conditions of this Agreement and the applicable Order Form for the period designated in such Order Form or otherwise by Perkville (and if not designated, then for thirty (30) days) (“Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a full subscription to the SaaS Services. Customer may not use a Trial Subscription for any other purpose, including without limitation for competitive analysis. At the end of the Trial Period, the Trial Subscription will expire and Customer will have the option to purchase a full subscription to the SaaS Services. If Customer purchases a full subscription, all of the terms and conditions in this Agreement shall apply to such purchase and the use of the SaaS Services unless otherwise specified in the Order Form for the Trial Subscription. Perkville has the right to terminate a Trial Subscription at any time for any reason. The SaaS Services may have a mechanism that limits access during the Trial Period and Perkville may otherwise restrict certain product functionality during the Trial Period. Customer shall not attempt to circumvent any such mechanism or restriction. Perkville has no obligation to retain Customer Data used with a Trial Subscription after the Trial Period. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DURING THE TRIAL PERIOD THE SAAS SERVICES IS PROVIDED “AS IS” AND PERKVILLE SHALL HAVE NO WARRANTY OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS UNLESS OTHERWISE SPECIFIED IN THE APPLICABLE ORDER FORM.
3. PROFESSIONAL SERVICES; JOINT DEVELOPMENT; COOPERATION.
3.1 Professional Services. Customer shall purchase any software customization, software integration, training, implementation or any other professional services from Perkville relating to the SaaS Services (“Professional Services”), pursuant to one or more separate SOWs executed between the parties containing the relevant terms and conditions for such Profession Services. Each SOW issued pursuant to this Agreement shall become effective only when executed by an authorized representative of both Customer and Perkville. Unless otherwise agreed, each executed SOW shall, by this reference, be incorporated into this Agreement and shall be subject to all of the terms and conditions of this Agreement. Except to the extent expressly set forth to the contrary in any applicable SOW, the following provisions shall apply to all SOWs:
3.1.1 Limited License to Use Customer-Owned Property. Customer grants Perkville a non-exclusive, non-transferable, worldwide, royalty-free license to reproduce, perform, display, distribute, create derivative works of, and otherwise use any Customer- owned materials and Intellectual Property Rights solely for Perkville’s use in connection with providing the Professional Services during the applicable Term and otherwise performing its obligations under this Agreement.
3.1.2 Acceptance of Work Product. Unless otherwise agreed to by the Parties in an applicable SOW, Work Product that Perkville delivers to Customer under any SOW shall be considered accepted upon the earlier of (a) when Customer provides Perkville written notice of acceptance or (b) ten (10) days after delivery of the applicable Work Product, if Customer has not first provided Perkville with written notice of rejection. Customer may reject Work Product in the event that it contains any Error(s) (as defined below), via written notice setting forth in reasonable detail the nature of such Error(s). In the event of such rejection, Perkville shall use commercially reasonable efforts (i) to correct and redeliver the Work Product to Customer within ten (10) days (the “Correction Period”); (ii) if it is impractical for Perkville to correct the Error(s) and redeliver the Work Product within the Correction Period, Perkville shall provide Customer with a written plan to correct the Error(s), including a schedule for such correction; or (iii) refund Customer the amounts paid for the non-conforming Work Product. Redelivery pursuant to the previous sentence shall constitute another delivery, and the Parties shall again follow the acceptance procedures set forth in the previous sentence. If Perkville disagrees with Customer's rejection of the Work Product, Perkville’s project manager shall promptly notify Customer’s manager in writing and schedule a meeting to discuss and resolve the issue. “Error(s)” means a failure of the applicable Work Product to substantially conform to the documentation or the applicable specifications for such Work Product, that materially impacts such Work Product’s operational performance or functional performance.
3.1.3 No Restrictions on Perkville. Subject to Section 7 (Confidentiality), neither this Agreement, any Order Form nor any SOW, prohibit or otherwise restricts Perkville from: (i) providing to any other person or entity any Professional Services, software, hardware, or utilizing designs that are the same as or similar to the services, software, hardware or designs provided to Customer hereunder, or (ii) using any ideas, concepts, know how, logic, models, utilities, routines, methodologies, processes, algorithms, templates, designs, tools or other items that arise out of or are improved by Perkville hereunder. Notwithstanding this Section 3.1.3, Perkville does not have any rights to use Customer’s Intellectual Property Rights except as specifically set forth in this Agreement or a separate written agreement between the parties.
3.1.4 No Support Obligation. Unless otherwise provided in an Order Form, SOW, or Change Order, Perkville and its licensors are under no obligation to install, maintain or support any Work Product, or any derivatives thereof.
3.1.5 Contents of SOW(s); Conflict. Each SOW may contain (or incorporate as attachments or by reference):
(a) Scope of the particular work to be performed;
(b) Description of any Work Product to be prepared;
(c) Estimated delivery schedule of Work Product;
(d) Fee structure and associated payment terms;
(e) Assumptions upon which the Statement of Work is based;
(f) Reference to this Agreement; and/or
(g) Other applicable information.
Perkville shall not be obligated to perform any Professional Services or deliver any Work Product that is not expressly provided for in an SOW. In the event of a conflict between the terms of this Agreement and the terms of an SOW, the terms of the body of this Agreement shall prevail, unless the SOW specifically states that such term is to override the term set forth herein.
3.1.6 Change Orders. All changes to an SOW may only be made by a Change Order referring to the SOW provisions to be changed and signed by an authorized representative of each party. In the event that Perkville or Customer proposes changes that alter the scope, timeline, or cost of a project, Perkville shall issue Customer a Change Order.
3.2 Cooperation. Customer acknowledges and agrees that Perkville’s performance of Professional Services is dependent upon Customer’s timely cooperation, feedback and provision of accurate and complete information. Customer agrees to designate a qualified and authorized contact (the “Customer Contact”) who shall act as a liaison for Customer in all important communications with Perkville. The applicable Customer Contact should be specified in the applicable SOW.
4. CUSTOMER’S OBLIGATIONS.
4.1 Cooperation and Assistance. As a condition to Perkville’s obligations hereunder, Customer shall at all times: (a) provide Perkville with good faith cooperation and access to such information, facilities, and equipment as may be reasonably required by Perkville in order to provide the SaaS Services, including, but not limited to, providing Customer Data, security access credentials, information, and software interfaces to Customer’s applications and applicable Third-Party Applications necessary for Perkville to provide the SaaS Services to Customer; (b) provide such personnel assistance as may be reasonably requested by Perkville from time to time; and (c) carry out in a timely manner all other Customer responsibilities set forth in this Agreement.
4.2 Marketing Support; Press Release. Customer shall comply with reasonable requests of Perkville to support public relations efforts pertaining to the Services, which efforts may include: (a) a press release highlighting Customer’s purchase or use of the Services (including any return on investment attained through the Services); (b) participation in targeted press and analyst interviews highlighting benefits of implementing the Services; and (c) participation in customer case studies developed by Perkville and used on the Perkville web site and other collateral. Customer grants to Perkville a non-exclusive, non-transferable (except as permitted under Section 14.9), limited right to use the Customer name, trademarks, and logos (collectively, the “Customer Marks”) in the production of marketing materials, provided that such use is in accordance with Customer’s trademark and logo use guidelines that Customer provides to Perkville. Perkville will use its
commercially reasonable efforts to cooperate with Customer in monitoring use of the Customer Marks. Perkville may issue a press release naming Customer as a customer upon the Effective Date and anytime during the Term.
4.3 Enforcement. Customer shall ensure that all Authorized Users comply with the terms and conditions of this Agreement, including, without limitation, with Customer’s obligations set forth in Sections 2.5, 2.6, and 2.7. Customer shall promptly notify Perkville of any suspected or alleged violation of the terms and conditions of this Agreement and shall reasonably cooperate with Perkville with respect to: (a) investigation by Perkville of any suspected or alleged violation of this Agreement and (b) any action by Perkville to enforce the terms and conditions of this Agreement. Perkville may suspend or terminate any Authorized User’s access to the SaaS Services upon notice to Customer in the event that Perkville reasonably determines that such Authorized User has violated the terms and conditions of this Agreement. Customer shall be liable for any violation of the terms and conditions of this Agreement by any Authorized User.
4.4 Telecommunications and Internet Services. Customer acknowledges and agrees that Customer’s and its Authorized Users’ use of the SaaS Services is dependent upon access to telecommunications and Internet services. Customer shall be solely responsible for acquiring and maintaining its telecommunications and Internet services and other hardware and software required to access and use the SaaS Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Perkville shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
5. FEES; EXPENSES; TAXES.
5.1 Fees. In consideration for Perkville providing the SaaS Services as set forth in the applicable Order Forms and the Professional Services set forth in the applicable SOW(s), Customer shall pay Perkville the fees set forth in such Order Forms and SOW(s), in accordance with the terms set forth therein.
5.2 Invoices; Payment; Late Payment. Each invoice is due and payable as set forth in the applicable Order Form. If Perkville has not received payment within five (5) days after the due date, interest shall accrue on past due amounts at the rate of one and one-half percent (1.5%) per month, but in no event
greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Perkville. Customer shall reimburse Perkville for the reasonable costs of collection, including reasonable fees and expenses of attorneys.
5.3 Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Perkville’s net income.
6. OWNERSHIP.
6.1 Perkville Technology. Customer agrees that Perkville or its suppliers retain all right, title and interest in (including all Intellectual Property Rights) and to the SaaS Services, Software, all Documentation, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (as defined below). Except as expressly set forth in this Agreement, no rights in the SaaS Service, Software, Documentation or any other Perkville intellectual property are granted to Customer. As between Perkville and Customer, the SaaS Services, Software, Documentation and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Perkville or its licensors.
6.2 Work Product. Perkville agrees that, upon payment of the consideration set forth on the applicable SOW, Customer shall have purchased all right, title and interest in and to all Work Product as set forth in the applicable SOW, including whether or not patentable, any idea, invention, concept, design, prototype, product configuration, process, technique, procedure, system, plan, model, program, software or code, data, specification, drawings, diagram, flow chart, documentation, or the like that are created pursuant to the applicable SOW (including any improvement in the design of the Work Product), as well as any reduction to practice of any subject matter, application or discovery which could be patented or copyrighted) and any associated Intellectual Property Rights in such Work Product, and they are the sole and exclusive property of Customer; provided, however, that Work Product shall not include any component of the SaaS Services, the SaaS Services, any Software, or any Documentation (including, in each case, all related Intellectual Property Rights), even in the event that Perkville-owned intellectual property may comprise part of the Work Product. Perkville agrees that all Work Product created by Perkville in connection with each applicable SOW are “works made for hire” on behalf of Customer as that term is used in connection with the U.S. Copyright Act. Perkville shall promptly disclose all Work Product to Customer and shall cooperate (and cause its employees and contractors to cooperate) in executing any documents and taking any other actions necessary or convenient to patent, copyright, assign to Customer or otherwise perfect or protect such Work Product for the benefit of Customer. To the extent that Perkville incorporates any Perkville- owned intellectual property into any Work Product, Perkville hereby grants or shall cause to be granted to Customer a non-exclusive, royalty-free, irrevocable, perpetual, transferable, worldwide license (with the right to sublicense) to make, have made, use, offer to sell, sell, import, copy, modify, create derivative works based upon, distribute, sublicense, display, perform and transmit such Work Product.
6.3 Customer Feedback. Customer may and Authorized Users each may, at their sole discretion from time to time, provide Perkville with feedback regarding the performance of the SaaS Services. All feedback, and comments that Customer and any Authorized User provides to Perkville hereunder relating to the SaaS Services, Software, Documentation and Work Product are referred to collectively as “Customer Feedback”. Customer grants to Perkville and Perkville’s successors and assigns a non-exclusive, worldwide, royalty free, assignable, perpetual and irrevocable (except with respect to Customer Feedback that constitutes Customer Confidential Information under Section 7 of this Agreement) right under Customer’s Intellectual Property Rights to use, sell, offer for sale, transfer, reproduce, distribute, disclose, import, and prepare derivative works from, together with the right to sublicense others to do the same, the Customer Feedback (as provided by Customer to Perkville) to improve Perkville’s (and its successors’ or assigns’) products and services; provided, that Perkville (and Perkville’s successors and assigns) shall not reveal Customer or any Authorized User as the source of the Customer Feedback or disclose to third parties any Customer Confidential Information that may be included with any Customer Feedback.
6.4 Customer Data. Notwithstanding anything to the contrary in this Agreement, as between the parties, Customer shall retain all right, title and interest in (including any and all Intellectual Property Rights) and to the Customer Data as provided to Perkville and any Customer-specific data outputs produced by the SaaS Services and/or provided to Customer through the SaaS Services as derived by the SaaS Services processing data about Customer or provided by Customer or third parties on Customer’s behalf. Subject to the terms of this Agreement, Customer, on behalf of itself and its suppliers and licensors (as applicable), hereby grants to Perkville a limited, worldwide, revocable, non-transferable, non- exclusive license, during the Term, right to use, view, copy, store, reformat, modify, distribute, create derivative works, display, and analyze (including sublicensing to third party data processors) the Customer Data solely to the extent necessary to provide the SaaS Services and any Professional Services to Customer.
6.5 Aggregated Anonymous Usage Data. Notwithstanding anything to the contrary herein, Customer agrees that Perkville may obtain and aggregate technical and other data about Customer’s use of the SaaS Services that is non-personally identifiable with respect to Customer or its Authorized Users (“Aggregated Anonymous Usage Data”), and Perkville may use the Aggregated Usage Anonymous Data to solely to analyze, improve, support and operate the SaaS Services and for distribution in general benchmarking data and industry reports. For clarity, this Section 6.5 does not give Perkville the right to identify Customer as the source of any Aggregated Anonymous Data.
7. CONFIDENTIALITY.
7.1 Definition. By virtue of this Agreement, the parties may have access to each other’s Confidential Information. “Confidential Information,” as used in this Agreement, means any written, machine-reproducible and/or visual materials that are clearly labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure, and any information of any nature described in this Agreement as confidential. Perkville Confidential Information includes, without limitation, the SaaS Services, Documentation and any Software whether in source or executable code, documentation, nonpublic financial information, pricing, Customer plans, techniques, methods, processes, and the results of any performance tests of the SaaS Services or the Software. Customer Data (including, but not limited to, any personally identifiable data provided by any Persons) is the Confidential Information of Customer. The terms and conditions of this Agreement shall be deemed the Confidential Information of both parties and neither party shall disclose such information except to such party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers as have a reasonable need to know such information; provided, that any such third parties shall, before they may access such information, either (a) have executed a binding confidentiality agreement with terms no less protective of the disclosing party’s Confidential Information as set forth in this Agreement or (b) be subject to a professional obligation to maintain the confidentiality of such information.
7.2 Exclusions. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by contemporaneous written evidence.
7.3 Use and Nondisclosure. During the Term and after the expiration or termination of this Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event shall either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. In addition, Perkville shall take reasonable actions to safeguard and otherwise prevent unauthorized access to Customer Data by any third party. Each party shall ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
8. WARRANTIES; WARRANTY DISCLAIMERS.
8.1 Mutual Warranties. Each party represents and warrants to the other that it has the legal power and authority to enter into this Agreement, and that: (a) this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery or performance of this Agreement; (c) the execution, delivery and performance of this Agreement does not violate the terms or conditions of any other legally binding agreement.
8.2 Additional Perkville Commitments. Perkville further represents and warrants that:
8.2.1 The SaaS Services and any Professional Services and any Work Product shall be provided in a professional and workmanlike manner and shall not contain disabling devices, viruses, trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots and other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software or data;
8.2.2 The SaaS Services shall comply with all applicable laws, rules and regulations;
8.2.3 The SaaS Services shall perform substantially in accordance with the Documentation, as provided or made available to Customer, under normal use and circumstances; and
8.2.4 The Work Product shall perform substantially in accordance with the documentation for such Work Product, if any, as provided or made available to Customer, under normal use and circumstances;
8.2.5 Perkville shall make commercially reasonable efforts to notify Customer, at least thirty (30) days in advance and in writing (via e- mail or notifications delivered by or via the SaaS Services), of any scheduled changes Perkville believes are likely to have a material, adverse impact on Customer’s use of the Service. Perkville reserves the right to make enhancements and other changes to the Service, including occasional deprecation and removal of certain features and functionality.
8.2.6 If Perkville breaches any warranties in Section 8.2, Customer’s exclusive remedy and Perkville’s sole obligation shall be for Perkville to make commercially reasonable efforts to correct the non- conformity or, if Perkville is unable to correct the non- conformity within thirty (30) days after receipt of Customer’s written notice, for Customer to terminate the applicable Order Form(s) and receive a refund, on a pro rata basis, of any Fees paid under such Order Form(s) that are unused as of the termination effective date.
8.3 Warranty Disclaimers. EXCEPT TO THE EXTENT EXPRESSLY STATED IN THIS AGREEMENT: (A) NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED (IN FACT OR BY OPERATION OF LAW), REGARDING THE SAAS SERVICES, ANY PROFESSIONAL SERVICES, ANY WORK PRODUCT, OR ANY MATTER WHATSOEVER; AND (B) PERKVILLE AND ITS LICENSORS DO NOT WARRANT THAT THE SAAS SERVICES OR ANY WORK PRODUCT ARE OR SHALL BE ERROR-FREE, MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY. PERKVILLE AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE SAAS SERVICES AND ANY WORK PRODUCT, AND CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON TO ANY THIRD PARTY ANY REPRESENTATION OR WARRANTY BY PERKVILLE.
8.4 THE SAAS SERVICES AND ANY WORK PRODUCT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS. PERKVILLE IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE, LOSS OR LIABILITY RESULTING FROM SUCH PROBLEMS NOT CAUSED BY PERKVILLE.
8.5 CUSTOMER AGREES THAT ITS SUBSCRIPTION TO THE SAAS SERVICES AND FEES DUE OR PAID UNDER THIS AGREEMENT ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, NOR BASED ON ANY ORAL OR WRITTEN COMMENTS REGARDING ANY FUTURE FUNCTIONALITY OR FEATURES OF THE SAAS SERVICES.
8.6 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
9. TERM AND TERMINATION.
9.1 Term. This Agreement shall commence on the Effective Date and shall continue for the period set forth in the applicable Order Forms (the “Term”), unless terminated earlier as provided in this Agreement.
9.2 Termination for Cause. Either party may terminate this Agreement upon written notice, if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach; provided, that the cure period for any default with respect to payment shall be five (5) days.
9.3 Termination for Insolvency. Subject to Title 11 of the United States Code, if either party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or makes an assignment for the benefit of any creditor, then the other party may terminate this Agreement upon thirty (30) days’ written notice.
9.4 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, (i) all monies due Perkville will immediately become due and payable, including the Cancellation Fee (as defined below) within thirty (30) days following termination (whether or not invoices have been provided) and (ii) Customer’s and Authorized Users’ right to access and use the SaaS Services shall immediately terminate, Customer and its Authorized Users shall immediately cease all use of the SaaS Services, and each party shall return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. Perkville may destroy or otherwise dispose of any Customer Data in its possession unless Perkville receives, no later than ten (10) days after the effective date of the expiration or termination of this Agreement, a written request for the delivery to Customer of the then- most recent back-up of the Customer Data. Customer is responsible for downloading copies of its Customer Data prior to the effective date of any expiration or termination of this Agreement or applicable Order Form. Also, upon expiration or termination of this Agreement, Perkville shall cease use of the Customer Marks (as defined in Section 4.2); provided, however, that (a) Perkville shall have a reasonable time to remove the Customer Marks from promotional materials, (b) Perkville shall be entitled to exhaust materials printed during the Term that include the Customer Marks, and (c) Perkville shall not be required to remove any such printed materials from circulation. If this Agreement is terminated either by Perkville for cause or by Customer for any reason other than cause prior to the conclusion of the applicable Term, then Customer shall be liable for and shall pay Perkville for the monthly Fees that would have been payable by Customer to Perkville but for such termination multiplied by the number of months remaining in the applicable Term (“Cancellation Fee”). The parties agree that any cancellation fees and early termination charges set forth in this Agreement constitute liquidated damages and are not intended as a penalty.
9.5 Survival. The rights and obligations of Perkville and Customer contained in Section 2.5 (Restrictions), Section 5 (Subscriptions Plans; Fees; Expenses; Taxes), Section 6 (Ownership), Section 7 (Confidentiality), Section 9.4 (Rights and Obligations Upon Expiration or Termination), Section 9.5 (Survival), Section 10 (Indemnification), Section 11 (Limitation of Liability), Section 12 (Acknowledgement), and Section 14 (General) shall survive any expiration or termination of this Agreement, any Order Form or any SOW.
10. INDEMNIFICATION.
10.1 By Perkville. Perkville shall indemnify, defend, and hold harmless Customer, its officers, directors, employees, successors and permitted assigns from and against any claims asserted by a third party (collectively, “Claims”) resulting from (i) violation of any law, rule, or regulation by Perkville; (ii) breach of this Agreement by Perkville; (iii) infringement of any Intellectual Property Right by Perkville, or (iv) Perkville’s gross negligence or willful misconduct.
10.1.1 If (a) any aspect of the SaaS Services or any Work Product (solely in the form as delivered by Perkville and unmodified, other than by Perkville) are found by a court or, in Perkville’s reasonable opinion is likely to be found by a court, to infringe upon a third party Intellectual Property Right, or (b) the continued use of the SaaS Services or Work Product are enjoined, Perkville shall promptly and at its own expense, in addition to the indemnification obligations above: (i) obtain for Customer the right to continue using the SaaS Services or applicable Work Product in accordance with this Agreement and the applicable Order Form(s) or SOWs, as applicable; (ii) modify the item(s) in question to no longer be infringing; or (iii) replace such item(s) with a non- infringing functional equivalent. If, after all commercially reasonable efforts, Perkville determines in good faith that options (i), (ii) and (iii) are not feasible, or Customer reasonably and in good faith determines that such modification or replacement in options (ii) or (iii) are not substantially equivalent, Perkville shall remove the infringing item(s) from the SaaS Services or applicable Work Product and refund to Customer on a pro rata basis any Fees paid by Customer for such infringing element(s) that are unused as of the removal date. Perkville shall have no obligation to indemnify Customer in connection with Claims for which Customer has an obligation to indemnify Perkville pursuant to Section 10.2, as to which Claims each party shall indemnify the other to the extent of its respective liability for such Claims.
10.1.2 THE FOREGOING REMEDIES IN SECTIONS 10.1 and 10.1.1 ARE PERKVILLE’S SOLE OBLIGATIONS, AND CUSTOMER’S EXCLUSIVE REMEDIES WITH RESPECT TO ANY THIRD-PARTY CLAIMS ALLEGING INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
10.1.3 Perkville shall have no obligation or liability for any Claim under this section to the extent arising from: (w) the combination, operation or use of the SaaS Services or any Work Product with any product, device, software or service not supplied, required, requested or approved by Perkville to the extent the combination creates the infringement unless such was known, approved, or necessary for the operation of the SaaS Services (e.g., use with the Internet); or (x) the unauthorized alteration or modification by Customer of the Services, or (y) Perkville’s compliance with Customer’s designs, specifications, requests, or instructions in integration of SaaS Services or creation of any Work Product to the extent the Claim is based on such compliance, or (z) Customer’s breach of Section 2.5 (Restrictions).
10.2 By Customer. Customer shall indemnify, defend and hold harmless Perkville, its officers, directors, employees, successors and permitted assigns from and against any claims asserted by a third party based on (a) a breach by Customer of the terms of this Agreement, including, but not limited to, of Sections 2.5, 2.6, and 2.7 of this Agreement, as well as third-party claims involving Customer’s modification, termination, or suspension of the Services or Section 2.11 of this Agreement; (b) any actions by Perkville in accordance with the terms of this Agreement that Perkville may undertake as an agent of Customer with regard to the Agent Purpose. Customer shall also indemnify Perkville and its officers, directors and employees by paying all damages, costs and expenses (including reasonable legal fees and costs) finally awarded by a court of competent jurisdiction, or agreed in a written settlement agreement signed by Customer, arising out of the third-party claims described in this section. Customer shall have no obligation to indemnify Perkville in connection with Claims for which Perkville has an obligation to indemnify Customer pursuant to Section 10.1, as to which Claims each party shall indemnify the other to the extent of its respective liability for such Claims.
10.3 Requirements for Indemnification. Each party’s respective defense and indemnity obligations under Sections 10.1 and 10.2 are contingent upon the other party: (a) promptly giving notice of the third-party claim to the defending/indemnifying party once the claim is known; (b) giving the defending/indemnifying party the opportunity to undertake sole control of the defense and settlement of the claim and not compromising or settling the claim without first seeking the defending/indemnifying party’s approval (though the defending/indemnifying party must not settle such claim unless the settlement unconditionally releases the other party of all liability and does not adversely affect the other party’s business or service in a material manner); and (c) making a reasonable effort to provide appropriate information and cooperation to the defending/indemnifying party, at the defending/indemnifying party’s expense, in connection with the claim. If the defending/indemnifying Party fails or refuses to undertake sole defense of a claim, fails or refuses to defend a claim through final resolution, unreasonably withholds approval of a settlement, or otherwise materially fails to cooperate with this Section, the other Party’s obligations under this Section will be considered fulfilled.
11. LIMITATION OF LIABILITY.
EXCEPT FOR (A) SUMS DUE PERKVILLE UNDER APPLICABLE ORDER FORMS, (B) CUSTOMER’S BREACH OF ITS OBLIGATIONS UNDER SECTION 2.5 (RESTRICTIONS) AND SECTION 2.6 (ADDITIONAL CUSTOMER RESPONSIBILITIES), (C) A BREACH BY A PARTY OF ITS OBLIGATIONS UNDER SECTION 7 (CONFIDENTIALITY), (D) EACH PARTY’S OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION), AND (E) EACH PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, GOODWILL, DATA, PROFITS OR REVENUE OR ANY BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. EXCEPT FOR (A) SUMS DUE PERKVILLE UNDER APPLICABLE ORDER FORMS, (B) CUSTOMER’S BREACH OF ITS OBLIGATIONS UNDER SECTION 2.5 (RESTRICTIONS) AND SECTION 2.6 (ADDITIONAL CUSTOMER RESPONSIBILITIES), (C) A BREACH BY A PARTY OF ITS OBLIGATIONS UNDER SECTION 7 (CONFIDENTIALITY), (D) EACH PARTY’S OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION), AND (E) EACH PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY’S AGGREGATE LIABILITY TO CUSTOMER AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’ ACCESS TO AND USE OF THE PERKVILLE SERVICES AND ANY WORK PRODUCT EXCEED THE TOTAL MONTHLY FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
12. ACKNOWLEDGEMENT.
The parties acknowledge that the limitations and exclusions contained in Section 11 and elsewhere in this Agreement have been the subject of negotiation between the parties and represent the parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement, and the payments made hereunder. Without limiting the generality of the foregoing, the parties acknowledge and agree that (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.
13. DATA; PRIVACY; SECURITY; CONTINUITY; AND SUPPORT.
13.1 Data Usage by the Parties. Except as otherwise specifically provided in this Agreement, Customer is solely responsible for the accuracy, content and legality of all Customer Data and agrees to comply with all applicable laws in its use of the Services. Customer represents and warrants to Perkville that Customer has all necessary rights, consents and permissions to collect, share and use Customer Data as provided for in this Agreement (including granting Perkville the rights in Section 6.4), without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, (ii) any laws, or (iii) any terms of service, privacy policies or other agreement governing the Customer Data, Customer’s accounts with Third-Party Application service providers. By enabling use of the Services with any Source or Destination, including, but not limited to any Third-Party Application, Customer authorizes Perkville to access Customer’s accounts of such Source or Destination, including, but not limited to any Third-Party Application, for the purposes described in this Agreement. Perkville may also disclose that Customer is a customer of Perkville and related technical Service data to providers of Third-Party Applications, Sources and Destinations used by Customer with the Services.
13.2 Compliance with Privacy Laws. Perkville shall use Customer Data only as permitted by privacy laws and this Agreement, subject to Customer processing Customer Data through the SaaS Services or Software in accordance with Section 2.5.
13.3 Security of the Services. Perkville’s data security program for the Services shall include reasonable and in no event less than commonly accepted industry standards in light of the services being provided hereunder and the sensitivity of the data that Perkville has access to pursuant to this Agreement, for administrative, physical, technical, organizational and other security measures to protect against unauthorized access to, or destruction, loss, unavailability or alteration of, any Customer Data residing in the Services. Perkville shall not be responsible or liable for any deletion, correction, damage, destruction or loss of Customer Data that does not arise from a breach by Perkville of its obligations under this Agreement.
13.4 Business Continuity & Disaster Recovery. Perkville shall maintain and implement throughout the term of this Agreement commercially reasonable business continuity and disaster recovery plans to help ensure availability of the Customer Data following any significant interruption or failure of critical business processes or systems affecting the Services.
13.5 Support. Perkville shall provide technical support for the Service in accordance with terms set forth in the applicable Order Form, for as long as Customer is entitled to receive support under the applicable Order Form and this Agreement.
14. GENERAL.
14.1 Governing Law; Jurisdiction; Attorney’s Fees. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in the County of San Francisco, California. Perkville and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding. If any action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and expenses, in addition to any other relief to which such prevailing party may be entitled.
14.2 Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
14.3 Notices. All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent to the addresses set forth below or delivered in person. The notices shall be deemed to have been given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; or (c) three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email or fax.
To customer:
At the address set forth in the latest Order Form.
To Perkville:
Perkville, Inc. Attn: CEO
2261 Market Street STE 85542
San Francisco, CA 94114
14.4 Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
14.5 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond the reasonable control of such party, which may include without limitation; denial-of-service attacks; strikes; riots; insurrection; fires; flood; storm; explosions; acts of God; war; terrorism; governmental actions, orders or restrictions; labor conditions; earthquakes; epidemic; pandemic; failure of suppliers; material shortages; or any other reason where failure to perform is beyond the control and not caused by the negligence or willful misconduct of the non-performing party (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non- performing party shall be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
14.6 Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
14.7 Export Control. In its use of the Service, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (a) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) Customer shall not (and shall not permit any of its users to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (c) Customer shall not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
14.8 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party shall have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
14.9 Assignment; Successors. Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s written consent except in the event of a Change of Control (as defined below). Any attempted assignment or transfer in violation of this Section shall be null and void. “Change of Control” means, with respect to a party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of such party or (ii) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (b) the merger of such party with another entity. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.
14.10 Subcontractors. Perkville may use the services of subcontractors and permit them to exercise the rights granted to Perkville in order to provide the Services under this Agreement. These subcontractors may include, for example, Perkville’s hosting, infrastructure and content delivery network providers. Perkville remains responsible for compliance of any such subcontractor with the terms of this Agreement and the overall performance of the Services as required under this Agreement. Perkville shall be responsible for the non-compliance with the terms of this Agreement of any of its subcontractors.
14.11 Entire Agreement. This Agreement together each Order Form and SOW constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) the applicable SOW (subject to the limitations as set forth herein), and (3) this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.
14.12 Non-Exclusive Remedies. The exercise by either party of any remedy under this Agreement shall be without prejudice to its other remedies under this Agreement or otherwise.
14.13 Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
14.14 No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
14.15 U.S. Government Customers. The Software, Documentation and the Services are “commercial computer software” and “commercial computer software documentation as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. Any use, duplication or disclosure of the Software, Documentation and the Services by or on behalf of the U.S. Government is subject to restrictions as set forth in this Agreement.
14.16 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
14.17 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
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