Last updated: December 1, 2018
This Software as a Service Agreement (the “Agreement”) is entered into by and between Idiotware, Inc. ("Idiotware", "Service Provider") and the organization or individual agreeing to the terms of this Agreement (the "Customer"). This Agreement shall be effective on the earliest of (a) the date Customer clicks a button indicating its agreement with the terms of this Agreement; (b) Customer entering into an Order Form or similar form referencing or otherwise incorporating this Agreement; or (c) Customer’s use of the Service (the “Effective Date”). If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the Customer and you represent that you have the power and authority bind that organization to this Agreement.
1 Grant of License to Access and Use Service
Service Provider hereby grants to Customer, including to all Customer’s Authorized Users, a non-exclusive, non-sublicensable, non-assignable, royalty-free, and worldwide subscription to access and use the IdiotSimple software (the “Service”) solely for Customer's internal business operations.
2 Subscription Fees
Customer shall pay Service Provider a subscription fee for use of the Service under this agreement provided as defined in the pricing table below (the "Subscription Fee"). Subscription fees will remain constant during the Term of the Agreement.
The initial term (“Initial Term”) of the Agreement will commence on the Effective Date and will terminate on the 1st anniversary of the Effective Date. Each 12-month period after the Effective Date will be defined as a “Service Year” (e.g. months 1-12 will constitute Service Year 1 and months 13-24 will constitute Service Year 2, etc). Following the expiration of the Initial Term, the Agreement shall automatically renew for the next Service Year at the latest monthly subscription fee schedule, until such time as either party provides thirty (30) days written notice to the other party of its intent to cancel the Agreement. The Initial Term may be renewed (a “Renewal Term”) upon mutual agreement of the parties in writing.
Customer shall pay the Subscription Fee to Service Provider
- at the commencement of the service period,
using one of the following payment methods,
- Credit Card
- Customer is responsible for any payment related fees (e.g. insufficient funds)
Customer’s fees under this Agreement exclude any taxes or duties payable in respect of the Service in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Service Provider, Customer must pay to Service Provider the amount of such taxes or duties in addition to any fees owed under this Agreement.
6 Interest on Late Payments
Any amount not paid when due will bear interest from the due date until paid at a rate equal to 1% per month (12.68% annually) or the maximum allowed by Law, whichever is less.
7 Support Services
7.1 Standard Support. Service Provider will provide standard support services as part of the Agreement as long as Customer account is in good standing. Service Provider shall provide Customer with a mechanism within the Service to submit support tickets generally available seven (7) days a week, twenty-four (24) hours a day.
7.2 Premium Support. Service Provider will offer premium support services under a separate agreement in addition to this Agreement for customers who wish to add direct email and phone support for up to two (2) customer contacts.
8 Service Levels
8.1 Applicable Levels. Service Provider shall provide the Service to Customer with a System Availability of at least 99% during each calendar month.
8.2 System Maintenance. Service Provider may
- perform system deployments to upgrade, enhance or fix the Service at its discretion without prior notice to Customer although such deployments will take place outside of normal business hours and the Service will generally remain available, and
- take the Service offline for maintenance that it provides Customer the schedule for in writing, and
- change its schedule of maintenance one month written notice to Customer
8.3 System Availability Definition.
- Percentage of Minutes per Month. "System Availability" means the percentage of minutes in a month that the Service is operational.
Not Included in System Availability. System Availability will not include any minutes of downtime resulting from
- system maintenance,
- events of force majeure,
- malicious attacks on the system,
- issues associated with Customer's computing devices, local area networks or internet service provider connections, or
- Service Provider's inability to deliver the Service because of Customer's acts or omissions.
9 Data Protection
Service Provider shall implement reasonable safeguards to prevent unauthorized access to, use of, or disclosure of the Customer's data.
10 Data Privacy
Service Provider does not collect any data that is not used for the benefit of the Customer’s use of the Service. Service Provider will not share any data provided by Customer with any third party unless compelled to do so by a court of law.
11 Statistical Information
Service Provider may anonymously compile statistical information related to the performance of the Service for purposes of improving the Service, but only if such information does not identify the data as Customer's or otherwise include Customer's name.
12.1 Mutual Representations
- Existence. The parties are corporations incorporated and existing under the laws of the jurisdictions of their respective incorporation.
- Authority and Capacity. The parties have the authority and capacity to enter into this agreement.
- Execution and Delivery. The parties have duly executed and delivered this agreement.
- Enforceability. This agreement constitutes a legal, valid, and binding obligation, enforceable against the parties according to its terms.
- No Conflicts. Neither party is under any restriction or obligation that the party could reasonably expect might affect the party's performance of its obligations under this agreement.
No Breach. Neither party’s execution, delivery, or performance of its obligations under this agreement will breach or result in a default under
- its articles, bylaws, or any unanimous shareholders agreement,
- any Law to which it is subject,
- any judgment, Order, or decree of any Governmental Authority to which it is subject, or
- any agreement to which it is a party or by which it is bound.
Permits, Consents, and Other Authorizations. Each party holds all Permits and other authorizations necessary to
- own, lease, and operate its properties, and
- conduct its business as it is now carried on.
- No Disputes or Proceedings. There are no Legal Proceedings pending, threatened, or foreseeable against either party, which would affect that party’s ability to complete its obligations under this agreement.
- No Bankruptcy. Neither party has taken or authorized any proceedings related to that party’s bankruptcy, insolvency, liquidation, dissolution, or winding up.
12.2 Service Provider's Representations
- Ownership. Service Provider is the exclusive legal owner of the Service, including all Intellectual Property included in and granted under the Service.
- Status of Licensed Intellectual Property. Service Provider has properly registered and maintained all Intellectual Property included in and granted under the Service and paid all applicable maintenance and renewal fees.
- No Conflicting Grant. Service Provider has not granted and is not obligated to grant any license to a third party that would conflict with the Service.
- No Infringement. The Service does not infringe the Intellectual Property rights or other proprietary rights of any third party.
- No Third-Party infringement. To Service Provider's Knowledge, no third party is infringing the Service.
13 User Obligations
13.1 Hardware Obligations. Customer shall be responsible for
- obtaining and maintaining all computer hardware, software, and communications equipment needed to internally access the Service, and
- paying all third-party access charges incurred while using the Service.
13.2 Anti-Virus Obligations. Customer shall be responsible for implementing, maintaining, and updating all necessary and proper procedures and software for safeguarding against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties (collectively "Viruses").
- Service Provider has the right to cancel any agreement where the Customer does not maintain proper precautions.
13.3 Customer's Use of Service. Customer shall
- abide by all local and international Laws and regulations applicable to its use of the Service,
- use the Service only for legal purposes, and
- comply with all regulations, policies and procedures of networks connected to the Service.
14 Restricted Uses
Customer will not
- upload or distribute any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Service,
- modify or attempt to modify, disassemble, decompile or reverse engineer the Service,
- probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Service,
- take any action that imposes an unreasonably or disproportionately large load on the sites, servers, or networks connected to the Service,
- copy or reproduce the Service,
- access or attempt to access or use any other clients' or their users' data through the Service,
- maliciously reduce or impair the accessibility of the Service,
- use the service to post, promote, or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, hateful, or otherwise objectionable material, or
- transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability, or
- Utilize the service where such utilization would constitute a crime.
Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure.
15.1 Any of Service Provider’s technology and any performance information relating to the Service will be deemed Service Provider’s Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will
- hold in confidence and not disclose any Confidential Information to third parties and
- not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.
15.2 The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 15 Confidentiality and that the Receiving Party remains responsible for compliance by them with the terms of this Section 15 Confidentiality. The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document:
- was rightfully in its possession or known to it prior to receipt of the Confidential Information
- is or has become public knowledge through no fault of the Receiving Party
- is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation or
- is independently developed by employees of the Receiving Party who had no access to such information
15.3 The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order, but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party.
15.4 The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
16 Ownership of Intellectual Property
Service Provider has and will retain all rights, title and interest in and to the Service, including all documentation, modifications, improvements, upgrades, derivative works, and all other Intellectual Property rights in connection with the Service. The Service is made available on a limited access basis, and no ownership right is conveyed to the Customer, irrespective of the use of terms such as “purchase” or “sale”. Customer may choose to submit Feedback to Service Provider and Service Provider may freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered Customer’s Confidential Information, and nothing in this Agreement limits Service Provider’s right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
17 Export Compliance
Customer represents that it is not located in, under the control of, or a national or resident of any country to which the United States has embargoed the import or export of goods, on the United States Treasury Department's List of Specially Designated Nationals or United States Commerce Department's Table of Deny Orders.
18.1 Termination on Notice. Either party may terminate this agreement for any reason on 30 days’ notice to the other party.
18.2 Termination for Material Breach. Each party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if
- the other party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and
- the failure, inaccuracy, or breach continues for a period of 30 days after the injured party delivers notice to the breaching party reasonably detailing the breach.
18.3 Termination for Failure to Pay. Service Provider may terminate this agreement with immediate effect by delivering notice of the termination to Customer if Customer fails to pay the monthly Subscription Fee on time three times over any 12-month period.
19 Effect of Termination
19.1 Pay Outstanding Amounts. Customer shall immediately pay to Service Provider all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination.
19.2 Discontinuance of Use. Customer shall cease all use of the Service upon the effective date of the termination.
19.3 Recovery of Data. Customer will have 30 days from the date of termination to retrieve any data that Customer wishes to keep.
20.1 Indemnification by Service Provider
Indemnification for Infringement Claims. Service Provider (as an indemnifying party) shall indemnify Customer (as an indemnified party) against all losses and expenses arising out of any proceeding
- brought by a third party, and
- arising out of a claim that the Services infringe the third party's Intellectual Property rights.
Qualifications for Indemnification. Service Provider will be required indemnify Customer under paragraph 20.1 Indemnification for Infringement Claims only if
- Customer's use of the Services complies with this agreement and all documentation related to the Service,
- the infringement was not caused by Customer modifying or altering the Service or documentation related to the Service, unless Service Provider consented to the modification or alteration in writing, and
- the infringement was not caused by Customer combining the Service with products not supplied by Service Provider, unless Service Provider consented to the combination in writing.
20.2 Mutual Indemnification. Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses arising out of any proceeding
- brought by either a third party or an indemnified party, and
- arising out of the indemnifying party's willful misconduct or gross negligence.
20.3 Notice and Failure to Notify
Notice Requirement. Before bringing a claim for indemnification, the indemnified party shall
- notify the indemnifying party of the indemnifiable proceeding, and
- deliver to the indemnifying party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.
- Failure to Notify. If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party's failure.
20.4 Exclusive Remedy. The parties' right to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this Section 20 Indemnification.
21 Limitation on Liability
21.1 Mutual Limit on Liability. Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this agreement.
21.2 Maximum Liability. Service Provider's liability under this agreement will not exceed the fees paid by Customer under this agreement during the 12 months preceding the date upon which the related claim arose.
22 General Provisions
22.1 Entire Agreement. The parties intend that this agreement, together with all attachments, schedules, exhibits, and other documents that both are referenced in this agreement and refer to this agreement,
- represent the final expression of the parties' intent relating to the subject matter of this agreement,
- contain all the terms the parties agreed to relating to the subject matter, and
- replace all of the parties' previous discussions, understandings, and agreements relating to the subject matter of this agreement.
22.2 Amendment. Service Provider may amend the terms and conditions of this agreement at any time by reasonable notice.
22.3 Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the other party's written consent.
Method of Notice. The parties shall give all notices and communications between the parties in writing by
- personal delivery,
- a nationally-recognized, next-day courier service,
- first-class registered or certified mail, postage prepaid, or
- electronic mail to the party's address specified in this agreement, or to the address that a party has notified to be that party's address for the purposes of this section.
Receipt of Notice. A notice given under this agreement will be effective on
- the other party's receipt of the notice, or
- if mailed, the earlier of the other party's receipt of it and the fifth (5th) business day after mailing the notice.
22.5 Governing Law. This agreement shall be governed, construed, and enforced in accordance with the laws of the State of Illinois, without regard to its conflict of laws rules.
22.6 Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
- Affirmative Waivers. Neither party's failure or neglect to enforce any rights under this agreement will be deemed to be a waiver of that party's rights.
- Written Waivers. A waiver or extension is only effective if it is in writing and signed by the party granting it.
- No General Waivers. A party's failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.
- No Course of Dealing. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.
22.8 Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.
23.1 "Business Day" means a day other than a Saturday, a Sunday, or any other day on which the principal banks located in Illinois are not open for business.
23.2 “Business Hours” means hours of operations on a business day (see “Business Day”). Service Provider’s normal business hours are from 8 am – 6 pm ET.
23.3 "Confidential Information" has the same meaning as the term referenced in Section 15 Confidentiality.
23.4 "Data" means all of the data Customer creates with or uses with the Service, or otherwise related to Customer's use of the Service.
23.5 "Disclosure Schedule" means the schedules delivered, before the execution of this agreement, by each party to the other party which list, among other things, items the disclosure of which is necessary or appropriate either in response to an express disclosure requirement contained in a provision of this agreement or as an exception to one or more of the representations or warranties made by the party, or to one or more of the covenants of the party.
23.6 "Effective Date" is defined in the introduction to this agreement.
23.7 "Governmental Authority" means
- any federal, state, local, or foreign government, and any political subdivision of any of them,
- any agency or instrumentality of any such government or political subdivision,
- any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that its rules, regulations or orders have the force of law), and
- any arbitrator, court or tribunal of competent jurisdiction.
23.8 "Intellectual Property" means any and all of the following in any jurisdiction throughout the world
- trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing,
- copyrights, including all applications and registrations related to the foregoing,
- trade secrets and confidential know-how,
- patents and patent applications,
- websites and internet domain name registrations, and
- other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys' fees for past, present, and future infringement, and any other rights relating to any of the foregoing).
23.9 "Law" means
- any law (including the common law), statute, bylaw, rule, regulation, order, ordinance, treaty, decree, judgment, and
- any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any Governmental Authority having the force of law.
23.10 "Legal Proceeding" means any claim, investigation, hearing, legal action, or other legal, administrative, arbitral, or similar proceeding, whether civil or criminal (including any appeal or review of any of the foregoing).
23.11 "License Grant" is defined in Section 1 Grant of License to Access and Use Service.
23.12 "Order" means any decision, order, judgment, award, or similar order of any court of competent jurisdiction, arbitration panel, or Governmental Authority with jurisdiction over the subject matter, whether preliminary or final.
23.13 "Permits" means all material licenses, franchises, permits, certificates, approvals, and authorizations, from Governmental Authorities necessary for the ownership and operation of the party's business.
23.14 "Person" includes
- any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and
- any individual.
23.15 "Service" is defined in Section 1 Grant of License to Access and Use Service.
23.16 "Subscription Fee" is defined in Section 2 Subscription Fees.
23.17 "System Availability" is defined in Section 8 Service Levels.
23.18 "Taxes" includes all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, value-added and all other taxes of any kind for which a party may have any liability imposed by any Governmental Authority, whether disputed or not, any related charges, interest or penalties imposed by any Governmental Authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise.
23.19 "Term" is defined in Section 3 Term.
23.20 "Viruses" is defined in Section 13 User Obligations.