SaaS Agreement

SOFTWARE AS A SERVICE (“SAAS”) SUBSCRIPTION AGREEMENT 

This Software as a Service Subscription Agreement is between the entity you represent, or, if you do not designate an entity in connection with the Subscription purchase or renewal, you individually (“you” or “your”), and Candisa Systems, Inc. (“Candisa Systems,” “we,” “us,” or “our”). It consists of the terms and conditions below, as well as the online Terms and Conditions of Service, and the Offer Details for your Subscription or renewal (in aggregate, the “Agreement”). The Effective Date is the date we provide you with confirmation of your Subscription or the date your Subscription is renewed. 

I. Definitions 

A. “Initial Term” means the duration of your first Subscription. 
B. “Offer” means the pricing and related terms applicable to a Subscription offer, as published by Candisa Systems. 
C. “SaaS Product” means all software, equipment, parts, networks, servers, services, and supplies provided by Candisa Systems for the particular product selected by you for Subscription. 
D. “Software” means Candisa Systems software that we provide for installation and/or performance of the SaaS Product or to use with the SaaS Product to enable certain functionality. 
E. “Subscription” means your enrollment for use of the SaaS Product for a defined Term, as specified by the applicable offer. 
F. “Users” are any of your employees, contractors, agents, customers, assigns or any other persons you allow to access the SaaS Product, whether intentionally or otherwise. 
G. “Term” means duration of a Subscription. 
H. “Terms and Conditions of Service” means the terms governing the use of the SaaS Product posted on the applicable website. 

II. Recitals 

A. This Agreement governs your use of the SaaS Product. 
B. We grant you the right to access and use the SaaS Product and to install and use the SaaS Product as further described in this Agreement. We reserve all other rights. 

III. License 

Service Provider grants to Customer a limited, non-exclusive, terminable, non- transferable license to access the SaaS Services through the SaaS System, or by any other means on which the parties may agree, and to use the SaaS Services during the Term or Service.

The SaaS Service may include download areas and product information provided by Service Provider or third-party vendors. All SaaS Services, including any updates, enhancements, new features, and/or the addition of any new Web properties, are subject to these Terms of Purchase and Use. All rights not expressly granted to you and your Users pursuant to the SaaS Subscription Agreement are reserved to Service Provider, and all uses of the SaaS Service not expressly permitted hereunder are prohibited.

As between you and your Users and Service Provider, the SaaS Services, any material or information provided pursuant to the SaaS Services, and any associated applications, tools or data, and all additions, modifications and improvements made or specified by Service Provider, its agents or contractors, are the property of Service Provider, and are protected by United States and international copyright, trademark and patent laws, as applicable. By using the SaaS Services, neither you nor your Users gain any ownership interest in such items.

You and your Users are responsible for ensuring the compliance of your usage of the SaaS Service with all applicable laws and regulations including HIPAA compliance.

Service Provider does not claim ownership of the usage information you or your Users provide for the use and operation of the SaaS Services. Service Provider and its vendors and contractors may use such information to operate and administer the SaaS Services. In addition, Service Provider may retain, analyze, use, and share such information in anonymous, filtered, or aggregate form for general business purposes.

Service Provider reserves the right to upgrade, modify, replace or reconfigure the SaaS Services at any time, provided that you will be provided at least thirty (30) days’ advance notice for changes that materially and adversely affect any use of the SaaS Services. Service Provider may also change the fee schedule, support terms, and service level agreements for the SaaS Services subject to at least thirty (30) days’ advance notice, except that the change will not apply for the remainder of the Term of Service to the amount and type of SaaS Services you have contracted for. Any such notice may be given and shall be effective if provided in an email sent to your account representative, or if included in any amendment, extension or new version of this Agreement or any Order Form. 

IV. Confidentiality 

A. Our Proprietary Information. You agree to protect and keep confidential any and all proprietary, trade secret, confidential or any valuable information you may learn prior to, during, or after the Agreement terminates, except as required by law. You agree to not disseminate, disclose, sell, publish or otherwise make available to a third-party or the public our proprietary information without prior authorization from Candisa Systems. You agree that your Users will also have the same obligations to protect such information as those that apply to you. In the event of an actual or suspected breach of confidentiality you agree that you and your Users will notify us within five (5) days of breach, as described in section XI of this agreement. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal; and does not disclose the trade secret, except pursuant to court order.

B. Your Proprietary Information. We agree to protect and keep confidential any and all proprietary, trade secret, confidential or any valuable information we may learn prior to, during or after the Agreement terminates, except as required by law. We agree to not disseminate, disclose, sell, publish or otherwise make available to a third-party or the public your proprietary information without your prior authorization. In the event of an actual or suspected breach of confidentiality, we agree to notify you within five (5) days of breach. 

V. Use of Services.

A. Acceptable Use. You may use the SaaS Product only as described by this Agreement. You and your Users may not use the SaaS Product in any manner that could damage, disable, overburden, or impair the SaaS Product or interfere with any other party’s use and enjoyment of the SaaS Product. You and your Users may not attempt to gain unauthorized access to any part of the SaaS Product, other accounts, computer systems or networks connected to the SaaS Product, to subscriber servers, or to any part of the SAAS Product through hacking, password mining, or any other means. You and your Users may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the SaaS Product. Except as expressly set forth herein, you and your Users may not copy, reproduce, alter, modify, transmit, create derivative works of, publish, sub-license, distribute, or circulate the SaaS Product or any associated applications, tools or data thereof. You and your Users may not disassemble, decompile, or reverse engineer the software used to provide the SaaS Product, or use a robot, spider or any similar device to copy or catalog any materials or information made available through the SaaS Product. You and your Users may not take any actions, whether intentional or unintentional, that may circumvent, disable, damage, or impair our control or security systems, or allow or assist a third party to do so.

B. Access. Following expiration of the Initial Term, the SaaS will cease operation if the license period ends without renewal. Upon renewal of your Subscription, this Agreement will expire, and your Subscription will be subject to the terms and conditions (“Renewal Terms and Conditions”) indicated on the website. If you do not agree to the Renewal Terms and Conditions, you may decline to renew your Subscription.

C. End Use. You control access by your Users and are responsible for their use of the SaaS Product in accordance with this Agreement. You will ensure that your Users comply with the Acceptable Use policy in section “A” above.

D. Third-party Data. We do not and will not assume any obligation with respect to third-party data or to your use of the SaaS Product other than as expressly set forth in this Agreement. You are solely responsible for all third-party data. You will secure and maintain all rights and obligations in third-party data necessary for us to provide the SaaS Product to you without violating the rights of any third-party.

E. Credentials. You are responsible for the confidentiality of any authentication credentials associated with your account and use of the SaaS Product. You must promptly notify Candisa Systems of any abuse or possible misuse of the authentication credentials or any other security-related risk to the SaaS Product.

F. Modification. We reserve the right to update and modify the SaaS Product as we deem reasonably necessary. Any update or modification is subject to the terms of this Agreement.

G. Changes to Terms and Conditions of Use. We reserve the right to change the Terms and Conditions of Use from time to time as we deem necessary. Such changes will become effective when the revised Terms and Conditions of Use are updated on the website. Any revised Terms and Conditions of Use shall supersede all previous versions. 

VI. Term, Termination of Subscription and Suspension

A. Term of Agreement. This Agreement remains in effect until the expiration, renewal, or termination of your subscription, whichever occurs first.

B. Termination of Subscription. You may terminate your subscription at any time during the Term of this Agreement. However, you must pay any and all amounts due and owing before termination will be effective.

C. Suspension. We may suspend your use of the SaaS Product if you do not pay amounts due under this Agreement; you or your Users do not comply with the Acceptable Use policy; it is reasonably necessary to prevent unauthorized access to customer data; or any other reason needed to limit our liability or protect the integrity of the SaaS Product. We will give you thirty (30) days’ notice before suspension for nonpayment of dues. If you have not responded to the reason for the suspension within sixty (60) days, we reserve the right to terminate your subscription, including deleting all of your data without any retention period. We also reserve the right to terminate your subscription if you are suspended more than twice in a twelve (12) month period. 

VII. Warranties and Disclaimers

A. Limited Warranty Online Services. This product is offered to you with limited warranties. The only remedies available to you are contained in Section VII(B) of this Agreement.

B. Limited Warranty for Software. We warrant that the Software will substantially perform as described in the applicable online product descriptions or user documentation. We guarantee a 99.9% service availability. If the Software fails to perform as warranted, we may elect to either (1) repair or replace the Software; or (2) refund the price paid for the Software. Service requests will be handled via the support portal (same as billing system) and email. Any guarantees regarding response times will be subject to terms listed in our support portal. This is your exclusive remedy for a breach of this warranty.

C. DISCLAIMER. OTHER THAN THE LIMITED WARRANTIES EXPRESSLY STATED IN THIS SECTION, WE PROVIDE NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES OF MERCHANTABILITY OR TITLE, WHETHER ARISING OUT OF A DESCRIPTION, MODEL OR OTHERWISE. THESE DISCLAIMERS APPLY TO THE FULLEST ALLOWABLE EXTENT UNDER THE APPLICABLE LAW. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CANDISA SYSTEMS OR ITS AGENTS SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF OUR OBLIGATIONS HEREUNDER. IN NO EVENT SHALL WE BE LIABLE FOR ANY LOST OR CORRUPTED DATA, DOWNTIME, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, INCLUDING NEGLIGENCE. 

VIII. Indemnification

A. Defense. In the event that a third-party claims that the SaaS Product infringes on its intellectual property rights, we will defend and indemnify you against any and all such claims. We reserve the right to replace or modify the SaaS Product with a functional equivalent if we deem this option commercially reasonable in the event of such a third-party claim. In the event that a third-party claims that your use of the SaaS Product infringes on the third-party’s rights, or your use of the product violates the Acceptable Use policy, you will defend and indemnify us.

B. Limitations. Our obligation to defend you will not apply to the following: any claim or award arising out of a modification you made to the SaaS Product; your use of the SaaS Product in conjunction with any other software or product whether affiliated with Candisa Systems or not; your unauthorized redistribution of the SaaS Product; or your use of third-party data giving rise to the claim.

C. Notification. Both parties must promptly notify the other of any claim under this section. Notification must be effectuated pursuant to this Agreement.

D. Control. The party seeking Defense and Indemnification must give the other party sole control over the defense and settlement of the claim. The party seeking Defense and Indemnification must reasonably cooperate and aide the party defending the claim. The party defending the claim will reimburse the other for reasonable expenses it incurs in cooperating and aiding in the defense. In the event that an adverse judgment or settlement is reached, the defending party agrees to pay the resulting amount of the final judgment or settlement. The rights and obligations under this section are in lieu of any statutory or common law rights. Both parties waive such statutory or common law rights. 

IX. Limitation of Liability

Candisa Systems and its affiliates shall not be liable for loss, injury or damage of any kind to any person or entity resulting from any use, condition, performance, defect or failure in the SaaS Product. You and your Users release and waive all claims against Candisa Systems, its parent, subsidiaries, affiliated companies, agents or content providers, and the directors, trustees, officers, shareholders, employees, agents and representatives of each of the foregoing (the “Service Provider Group”), from any and all claims, damages, liabilities, costs and expenses arising out of you and your Users’ use of the SaaS Product. California residents waive any rights they may have under §1542 of the California Civil Code, which reads: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” You and your Users agree to release unknown claims and waive all available rights under California Civil Code §1542 or under any other statute or common law principle of similar effect. To the extent permitted by applicable law, this release covers all such claims regardless of the negligence of the Service Provider Group.

NEITHER PARTY WILL BE LIABLE FOR LOSS OF REVENUE OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY NOR PUNITIVE DAMAGES, OR DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOST OPPORTUNITIES, LOSS OF PROFITS OR LOST REVENUES EVEN IF THE PARTY KNEW IT WAS REASONABLY FORESEEABLE. 

X. Miscellaneous

A. Authority. You represent and warrant that you have the requisite authorization and authority to accept this Agreement and pay for the associated SaaS Services. If you do not have the requisite authorization and authority to purchase and pay, then you agree to comply with this Agreement in your personal capacity.

B. Transfers and Assignments. You may not transfer, assign or encumber this Agreement or any associated licenses, in whole or in part without our consent.

C. Waiver. Failure to enforce any provision of this Agreement does not constitute a waiver.

D. California Residents. You agree to waive your rights under California CivilCode § 1542, and release all claims that you do not know of or suspect exist at the time of executing this Agreement.

E. Severability. If any part of this Agreement is held unenforceable, the remainder of the Agreement remains in full force and effect.

F. Choice of Law and Venue. This agreement is governed by Texas law without respect or application of its conflict or choice of law principles or laws. Any action to enforce this Agreement must be brought in the State of Texas, in the county or district where Candisa Systems has its primary office.

G. Third-party Beneficiaries. There are no third-party beneficiaries to this Agreement.

H. Force Majeure. Neither party shall be liable for any failure of performance or consequence thereof resulting from delay or inability to deliver caused by strikes, lockouts, fire, theft, shortage, inability to obtain materials or shipping space, breakdowns, delays or carriers, manufacturers, or suppliers, acts of God, governmental statutes, proclamations or regulations, riot, civil commotion, embargo, war, malicious mischief, or by any cause beyond your reasonable control.

I. Internet Use. You agree that you are solely responsible for the security of any information transmitted to you or your Users over the Internet, including through the use of e-mail. Access to the Internet is your sole responsibility and the responsibility of Internet provider(s) you select.

J. Miscellaneous Obligations. You agree to provide the necessary electric service, wiring, computer equipment, internet and communication line access for access to the SaaS Product. You will be responsible for ongoing charges for your use of such services and equipment.

K. Non-Agency. This Agreement does not create an agency, joint venture, partnership, or employee-employer relationship.

L. Merger Clause. This Agreement constitutes the entire Agreement. In the event that terms conflict between documents in this Agreement, the terms will control in the following order: (1) Online Terms and Conditions as may be updated from time to time; (2) this Agreement; (3) an applicable Offer; (4) any other documents in this Agreement.

XI. Effective Date and Acceptance

You accept this agreement and its terms by ordering any free or paid subscriptions, under the SaaS category, through the candisa.com website.

Effective Date: September 8, 2020

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Notice. You must send notices to: