Datch SaaS Services Agreement

Background

Datch is a technology company which has developed a cloud based Platform-as-a-Service that enables customers to record and retrieve workplace-related information through various interfaces and integrations.

From time to time, Customer and Datch may enter into Orders pursuant to which Customer will purchase rights to use the Datch Platform-as-a-Service. This Agreement applies to any Order that incorporates this Agreement and all subsequent Orders to the exclusion of any other terms or conditions that either Party seeks to impose or incorporate or that are implied by course of dealing. In the event of any conflict between this Agreement and any Order, the terms and conditions in such Order shall govern with respect to such Order.

1. Right to Use Datch Platform Services

1. Datch Service Platform. Datch will make its platform-as-a-service available to Customer during the Subscription Term (as defined below) via the Internet (the “Datch Platform”) pursuant to this Agreement and the applicable Order(s). Subject to the terms and conditions of this Agreement, Datch hereby grants Customer the limited, nonexclusive, nontransferable, non-sublicensable (except as expressly set forth herein) right to access and use the Datch Platform during the Subscription Term solely for Customer’s internal business purposes.
2. Datch Mobile App. Datch will make available certain downloadable software applications that enable Customer’s end users to access the Datch Platform directly from an Android, iPhone, iPad or other mobile device supported by Datch (each, a “Datch Mobile App”). Subject to the terms and conditions of this Agreement, Datch hereby grants Customer the limited, nonexclusive, nontransferable, non-sublicensable right and license to install and use for internal business purposes the Datch Mobile App solely for the purpose of using the Datch Platform. For purposes of this Agreement, all references to the Datch Platform also include the Datch Mobile App.
3. Limitations. The following limitations and restrictions will apply to the Datch Platform:

2. Ownership; Reservation of Rights

1. Customer Data.

2. Datch Platform and Datch Mobile App Ownership; Reservation Of Rights. Customer acknowledges and agrees that, as between the parties, Datch retains all rights, title and interest in and to the Datch Platform and Datch Mobile App, all copies or parts thereof (by whomever produced) and all intellectual property rights therein. Datch grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Datch Platform and Datch Mobile App. Datch hereby reserves any and all, and Customer will acquire no, rights, title or interest in and to the Datch Platform or Datch Mobile App or any copies thereof (by whoever produced) other than the limited licensed rights expressly granted under this Agreement.
3. Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Datch with respect to the Datch Platform or Datch Mobile App. Customer hereby grants Datch a royalty-free, fully paid-up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback in whole or in part; and (b) use the Feedback in whole or in part, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback in whole or in part.
4. Customer Responsibilities. Customer will (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Datch Platform and Datch Mobile App and notify Datch promptly of any such unauthorized access or use, and (b) use Datch Platform and Datch Mobile App only in accordance with the documentation and applicable laws and regulations.
5. Datch Responsibilities.

3. Fees; Payment Terms

1. Fees; Payment Terms. Customer will pay Datch such fees at such times as indicated on the applicable Order(s). Unless otherwise set forth in an Order, Customer shall pay Datch within thirty (30) days of the applicable invoice date. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by Datch within thirty (30) days from the time such payment is due, Datch may suspend access to the Datch Platform and Datch Mobile App until such payment is made. At its discretion, Datch may increase the pricing stated on the applicable Order for any Renewal Term (as defined below) upon giving Customer at least sixty (60) days’ notice (which may be sent by email) prior to the end of the then-current term.
2. Net of Taxes. All amounts payable by Customer to Datch hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively "Taxes"). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Datch. Customer will not withhold any Taxes from any amounts due Datch.

4. Term, Termination

1. Term. This Agreement will commence on the Effective Date and continue for a period of three (3) years or until there are no longer any Orders currently in effect, unless this Agreement terminates earlier in accordance with its terms. The period of time during which the Customer purchases the right to access the Datch Platform under an applicable Order shall be referred to as a “Subscription Term”. Unless a Party notifies the other of its intent not to renew within thirty (30) days of the conclusion of the applicable Subscription Term, then the particular Order shall renew for a period of one (1) year (a “Renewal Term”); provided that no Renewal Term(s) shall exceed the length of the original Subscription Term.
2. Termination. In addition to any other remedies it may have, either party may terminate this Agreement (a) for any reason upon ninety (90) day’s prior written notice to the other party, or (b) if the other party breaches any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) days’ after receiving written notice thereof.
3. Effect of Termination. Upon termination of this Agreement, or any Order subject to this Agreement, any fees committed under a mutually executed Order for a multi-year Subscription Terms shall remain due and payable as and when due following any termination. For example, if the Subscription Term is three years, and Customer terminates the applicable Order at the end of the first year, the fees for the second and third year shall remain due and payable as and when due. Upon any termination or expiration of this Agreement for any reason, Datch will provide a one-time export of Customer Data to Customer in Datch’s standard format, upon Customer’s written request, which request must be received by Datch within thirty (30) days of the effective date of expiration or termination. After such thirty (30) day period, Datch will delete any Customer Data stored or otherwise archived on the Datch Platform or on Datch’s network (subject to Datch’s rights to the Anonymous Data and Aggregate Data under Section 2.1(c)). Except as expressly stated herein, upon any expiration or termination of the Agreement, all rights granted hereunder and all obligations of Datch to provide the Datch Platform and Datch Mobile App will immediately terminate and Customer will (i) cease use of the Datch Platform and Datch Mobile App; and (ii) return or destroy all other copies or other embodiments of Datch’s Confidential Information.
4. Survival. Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 2.1(c) (Customer Data), 2.2 (Datch Platform and Datch Mobile App Ownership), 2.3 (Feedback), 3 (Fees; Payment Terms), 4.4 (Effect of Termination), 5 (Confidentiality), 7 (Limitations of Liability; Indemnification), and 8 (General) will survive.

5. Confidentiality

1. As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Datch’s Confidential Information includes, without limitation, the Datch Platform, Datch Mobile App and the terms of this Agreement. Customer’s Confidential Information includes, without limitation, the Customer Data (subject to the rights expressly granted to Datch herein). Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. Each party acknowledges that the Confidential Information constitutes valuable trade secrets and proprietary information of a party, and each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the nonbreaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Upon the termination of this Agreement, each Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party and to certify the return or destruction of all such Confidential Information and embodiments thereof.

6. Representations, Warranties and Disclaimer

1. Representations and Warranties. Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties. In addition, Datch represents and warrants that: (i) it will use commercially reasonable efforts to ensure that the Datch Platform and the Datch Mobile App do not contain any viruses or malware; and (ii) the Datch Platform and the Datch Mobile App will substantially confirm with the applicable documentation provided by Datch.
2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH OF THE DATCH PAAS AND DATCH MOBILE APP IS PROVIDED ON AN “AS-IS” BASIS AND DATCH DISCLAIMS ANY AND ALL WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NONINFRINGEMENT. NEITHER PARTY WARRANTS AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY OR AGAINST INFRINGEMENT. NEITHER PARTY WARRANTS THAT THE PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY ARE ERROR-FREE OR THAT OPERATION OF SUCH PARTY’S PRODUCTS OR SERVICES WILL BE SECURE OR UNINTERRUPTED. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.

7. Limitations of Liability; Indemnification

1. Disclaimer of Consequential Damages. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, IN NO EVENT WILL DATCH BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF DATCH HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
2. General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL DATCH’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO DATCH UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
4. Defense by Datch. Datch will defend Customer and the officers, directors, agents, and employees of Customer (“Customer Parties”) from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party or incurred by the Customer Parties (including reasonable attorneys' fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of any copyright infringement claim or trade secret misappropriation claim that involves, relates to or concerns the Datch Platform or Datch Mobile App (except for claims for which Datch is entitled to indemnification under Section 7.5, in which case Datch will have no obligations with respect to such claim). Datch will have no liability or obligation under this Section 7.4 with respect to any Liability if such Liability is caused in whole or in part by (x) modification of the Datch Platform by any party other than Datch without Datch’s express consent; (y) the combination, operation, or use of the Datch Platform or Datch Mobile App with other product(s), data or services where the Datch Platform or Datch Mobile App would not by itself be infringing; or (z) unauthorized or improper use of the Datch Platform or Datch Mobile App. If the use of the Datch Platform or Datch Mobile App by Customer has become, or in Datch’s opinion is likely to become, the subject of any claim of infringement, Datch may at its option and expense (a) procure for Customer the right to continue using the Datch Platform or Datch Mobile App as set forth hereunder; (b) replace or modify the Datch Platform or Datch Mobile App to make it noninfringing so long as the Datch Platform or Datch Mobile App has at least equivalent functionality; (c) substitute an equivalent for the Datch Platform or Datch Mobile App or (d) if options (a)- (c) are not reasonably practicable, terminate this Agreement. This Section 7.4 states Datch’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
5. Indemnification by Customer. Customer will indemnify, defend and hold Datch and the officers, directors, agents, and employees of Datch (“Datch Parties”) harmless from Liabilities that are payable to any third party or incurred by the Datch Parties (including reasonable attorneys' fees) arising from, directly or indirectly, any claim, demand or allegation by a third party (a) arising from or related to any use or disclosure by Customer of any Datch Platform or Datch Mobile App in violation of this Agreement or (b) a breach by Customer of Section 2.6.
6. Procedure. If a Customer Party or a Datch Party becomes aware of any matter for which it believes it should be indemnified or defended under Section 7.4 or Section 7.5, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the such Party by any third party (each an “Action”), such Customer Party or Datch Party will give the other party prompt written notice of such Action. Customer Party or Datch Party will cooperate, at the expense of the other Party, with the other Party and its counsel in the defense and Customer Party or Datch Party, as applicable will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both parties hereunder, such consent not to be unreasonably withheld or delayed.

8. General

Customer may not provide access to the Datch Platform or Datch Mobile App to any person or entity that is (a) identified on the Specially Designated Nationals List or Foreign SanctionsEvaders List of the Office of Foreign Assets Control, U.S.Department of the Treasury, as amended from time to time; (b) located in Cuba, Iran, North Korea, Sudan, Syria, or any other country that is subject to U.S. economic sanctions prohibiting such access; or (c) otherwise unauthorized to have such access under any law or regulation of the United States or any non-U.S. authority of competent jurisdiction. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign this Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this Section 8 will be null and void. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Customer acknowledges that any unauthorized use of the Datch Platform or Datch Mobile App will cause irreparable harm and injury to Datch for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that Datch will be entitled to injunctive relief in the event Customer uses the Datch Platform or Datch Mobile App in violation of the limited license granted herein or uses the Datch Platform or Datch Mobile App in any way not expressly permitted by this Agreement. All notices under this Agreement will be in writing and sent to the recipient’s address set forth in the most recent Order and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each party agrees that it will not, without prior written consent of the other, issue a press release regarding their business relationship. Datch may mention Customer and the relationship between Datch and Customer in Datch’s marketing collateral, website, and other promotional and marketing materials. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, the other party not affected by the Force Majeure Event may terminate this Agreement by giving written notice thereof to the other party. Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in San Francisco, California and waives any jurisdictional, venue, or inconvenient forum objections to such courts.