DCKAP MASTER SAAS AND SERVICES AGREEMENT
This Master SaaS and Services Agreement (this “Agreement”) is entered into by and between DCKAP, a Texas corporation having its principal place of business located at 1901 E Palm Valley Blvd, Suite 109, Round Rock, TX 78664 (“DCKAP”) and you (“Customer”) as of the date of the applicable Statement of Services. By signing the applicable Statement of Services, you agree to the terms of this Agreement. DCKAP and Customer are sometimes referred to jointly as the “parties” or singularly as a “party.”
[The terms and conditions on this agreement are applicable to DCKAP and its SaaS product lines, including “DCKAP Integrator (Formerly Cloras)”, “DCKAP PIM (Formerly flexiPIM)”, “QA Touch”, and “DCKAP Analytics (Formerly VizB)”]
WHEREAS, Customer desires to obtain access to the Services with respect to certain of its information technology needs; and DCKAP wishes to provide the Services to Customer, each on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, and other valuable consideration, the receipt, and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 Purpose. This Agreement sets forth the terms and conditions under which DCKAP agrees to provide (i) certain hosted “software as a service” (“Subscription Services”) for certain software applications (each such application together with any applicable documentation thereto, and programming and user interfaces therefor, a “Platform”) to Authorized Users, as further set forth on each order form (“Order Form”) and (ii) if applicable, all other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management (“Professional Services” together with Subscription Services, the “Services”) related to Customer’s access to, and use of, such Subscription Services and each Platform, as further set forth on each statement of services (“Statement of Work”) issued hereunder (Order Forms and Statements of Professional Services are sometimes referred to jointly as a “Statement of Services”).
1.2 The Services; Access and Use License. Subject to the terms and conditions of this Agreement, during the Term, DCKAP shall use commercially reasonable efforts to provide (i) Customer and Authorized Users access to each Platform, and (ii) Customer the Professional Services. Subject to the terms and conditions of this Agreement, during the Term, DCKAP hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, non transferable, worldwide license to access and use each Platform, solely for internal business purposes as set forth herein.
1.3 Subscription Services. Each applicable Order Form shall specify and further describe the Subscription Services to be provided in accordance with the representations and warranties set forth herein, and shall identify, each applicable Platform, user limitations, fees, subscription term and other applicable terms and conditions.
1.4 Professional Services. Each applicable Statement of Work shall specify and further describe the Professional Services to be provided in accordance with the representations and warranties set forth herein, and may, but need not, include, the Professional Services offered, limitations, milestones, fees, term and other applicable terms and conditions.
1.5 Changes to Platform. DCKAP may, in its sole discretion, make any changes to any Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of DCKAP’s products or services to its customers, (b) the competitive strength of, or market for, DCKAP’s products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law.
2. PLATFORM ACCESS AND AUTHORIZED USER
2.1 Administrative Users. During the configuration and set-up process for each Platform, Customer will identify an administrative user name and password for Customer’s DCKAP account. DCKAP reserves the right to refuse registration of, or cancel usernames and passwords it deems inappropriate.
2.4 Account Responsibility. Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its DCKAP account, passwords (including but not limited to administrative and user passwords) and files. DCKAP is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
3. ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES
3.1 Software Restrictions. Customer will not, nor permit or encourage any third party to, directly or indirectly (i) 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 a Platform or any software, documentation or data related to a Platform (“Software”); (ii) modify, translate, or create derivative works based on a Platform or any Software; (iii) use a Platform or any Software for time sharing or service bureau purposes or other computer service to a third party; (iv) modify, remove or obstruct any proprietary notices or labels; or (v) use any Software or a Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software or Platform. For the avoidance of doubt, Software and the Services, including all user-visible aspects of the Services, are the Confidential Information of DCKAP, and Customer will comply with Section 4 with respect thereto.
3.3 Cooperation. Customer shall provide all cooperation and assistance as DCKAP may reasonably request to enable DCKAP to exercise its rights and perform its obligations under, and in connection with, this Agreement, including providing DCKAP with such access to Customer’s premises and its information technology infrastructure as is necessary for DCKAP to perform the Services in accordance with this Agreement.
3.4 Training and Education. Customer shall use commercially reasonable efforts to cause Customer Users to be, at all times, educated and trained in the proper use and operation of each Platform such Customer Users utilize, and to ensure that each Platform is used in accordance with applicable manuals, instructions, specifications and documentation provided by DCKAP from time to time.
3.5 Customer Systems. Customer shall be responsible for obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use each Platform, including modems, hardware, servers, software, operating systems, networking, web servers and the like.
3.6 Restrictions on Export. Customer acknowledge that the Software or anything related to a Platform, Software or Services are subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not, and shall not allow any third-party to, remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
4.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has been, and may be, exposed to or acquired business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Confidential Information of DCKAP includes non-public information regarding features, functionality and performance of each Platform and Software. Confidential Information of Customer includes non-public data provided by Customer to DCKAP to enable the provision of access to, and use of, the Services as well as all content, data and information recorded and stored by each Platform for Customer (“Customer Data”), but explicitly excludes Vendor Information (defined below). The terms and conditions of this Agreement, including all pricing and related metrics, are DCKAP’s Confidential Information.
4.2 Exceptions. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
4.3 Non-use and Non-disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.
4.4 Compelled Disclosure. Notwithstanding Section 4.3, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however, that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.
4.5 Remedies for Breach of Obligation of Confidentiality. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
5. PROPRIETARY RIGHTS
5.1 Ownership. Customer shall own all rights, title and interest in and to the Customer Data. DCKAP shall own and retain all right, title and interest in and to (i) each Platform, Software and the Services and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”). To the extent Customer acquires any right, title or interest in any Services IP, Customer hereby assigns all of its right, title and interest in such Services IP to DCKAP.
5.2 Customer Data and Vendor Information License. Customer hereby grants to DCKAP a non-exclusive, transferable, sublicensable, worldwide and royalty-free license to use and otherwise exploit (i) Customer Data to provide the Services to Customer hereunder and as necessary or useful to monitor and improve a Platform, Software and the Services, both during and after the Term, and (ii) Vendor Information for any lawful purpose. “Vendor Information” means any Vendor list or Vendor contact information that is provided to DCKAP by Customer or uploaded to any Platform by or on behalf of Customer. For the avoidance of doubt, DCKAP may use, reproduce and disclose Platform-, Software- and Services-related information, data and material that is anonymized, de identified, or otherwise rendered not reasonably associated or linked to Customer or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by DCKAP. It is Customer’s sole responsibility to back-up Customer Data during the Term, and Customer acknowledges that it will not have access to Customer Data through DCKAP or any Platform following the expiration or termination of this Agreement.
5.3 No Other Rights. No rights or licenses are granted except as expressly set forth herein.
6. FEES & PAYMENT
6.1 Fees. Customer will pay DCKAP the then-applicable fees described in an Order Form or Statement of Work, as applicable, in accordance with the terms set forth therein (“Fees”), including, for the avoidance of doubt, any fees incurred through Customer’s use of a Platform exceeding a services capacity parameter specified on an Order Form.
6.2 Renewal Fees. Upon the commencement of each Renewal Term, (i) Customer shall be liable to DCKAP for payment of a Renewal Fee. Customer hereby consents to DCKAP charging any such Renewal Fee to the credit card, or other payment method, associated with Customer’s account without need to provide any further notice or receive any further consent. Each “Renewal Fee” shall equal the Service Fee or Renewal Fee, as applicable, due to DCKAP during previous term as may be increased in DCKAP’s sole discretion by a percentage up to the Fee Increase Percentage specified on the applicable Order Form; provided that, if the Initial Term was greater than one (1) year, for purposes of calculating the initial Renewal Fee the Service Fee shall be prorated to one (1) year. Notwithstanding the foregoing, if Customer is not liable to DCKAP for a Service Fee under an Order Form, no Renewal Fees shall be charged to Customer with respect to such Order Form.
6.3 Reimbursable Expenses. In addition to the Fees, if applicable, Customer shall reimburse DCKAP for reasonable out-of-pocket expenses incurred by DCKAP in connection with performing the Professional Services.
6.4 Payment. DCKAP may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by DCKAP within the time specified on the applicable Statement of Services. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, plus all expenses of collection. In addition to any other remedies available, DCKAP may suspend Services in the event of payment delinquency. Customer acknowledges and agrees that DCKAP does not provide refunds on Services that have been initiated. DCKAP’s business model calls for DCKAP to provide the Services upon initiation and full or partial refunds are not possible based on the amount of work done.
6.5 Payment Disputes. If Customer believes that DCKAP has billed Customer incorrectly, Customer must contact DCKAP no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to DCKAP’s customer support department or the applicable Account Manager.
6.6 Taxes. Customer shall pay, and shall be liable for, all taxes relating to DCKAP’s provision of the Services hereunder. DCKAP shall pay, and shall be liable for, taxes based on its net income or capital.
6.7 No Deductions or Setoffs. All amounts payable to DCKAP hereunder shall be paid by Customer to DCKAP in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law.
6.8 Subpoena Expenses. If DCKAP has to provide information in response to a subpoena related to Customer’s account, then DCKAP may charge Customer for DCKAP’s costs. Such charges may include fees for attorney and employee time spent retrieving records, preparing documents and participating in depositions or other legal process as well as other costs incurred in complying with such legal processes.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall remain in effect until its termination as provided below (the “Term”). The term of each Statement of Services shall begin on the applicable “Services Effective Date” and continue for the “Service Term,” in each case as specified in such Statement of Services. Each Order Form shall renew for additional (i) one (1) year periods if the Service Term is equal to or greater than one (1) year, or (ii) periods equal to the Service Term if the Service Term is less than one (1) year (each, a “Renewal Term”), unless written notice of non-renewal is received by the other party at least sixty (60) days, but not less than thirty (30) days, prior to the expiration of the then current term.
7.2 Termination. DCKAP may terminate this Agreement upon written notice to Customer if no Statement of Services is in effect and/or under the conditions set forth in Section 17. In addition to any other remedies it may have, either party may also terminate this Agreement upon written notice if the other party fails to pay any amount when due or otherwise materially breaches this Agreement and fails to cure such breach within fifteen (15) days or as agreed upon by both parties after receipt of written notice of such breach from the non-breaching party.
7.3 Effect of Termination. Upon termination of the Agreement, each outstanding Statement of Services, if any, shall terminate and Customer shall immediately cease all use of, and all access to, the Subscription Services and DCKAP shall immediately cease providing the Professional Services. If DCKAP terminates this Agreement pursuant to the second sentence of Section 7.2, all Fees that would have become payable had each outstanding Statement of Service remained in effect until expiration of its current term will become immediately due and payable.
7.4 Survival. Sections 3.1, 4–6, 7.2, 7.4, and 9–18 shall survive any termination or expiration of this Agreement. All other rights and obligations shall be of no further force or effect.
8. WARRANTY AND DISCLAIMER
8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN A STATEMENT OF SERVICE, DCKAP DOES NOT WARRANT THAT ACCESS TO THE PLATFORMS, SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES DCKAP MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. FURTHER, DCKAP MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY SERVICE PROVIDERS RELATING TO OR SUPPORTING A PLATFORM, INCLUDING HOSTING AND MAINTENANCE SERVICES, AND ANY CLAIM OF CUSTOMER ARISING FROM OR RELATING TO SUCH SERVICES SHALL, AS BETWEEN DCKAP AND SUCH SERVICE PROVIDER, BE SOLELY AGAINST SUCH SERVICE PROVIDER. THE PLATFORMS, SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND DCKAP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
If a third party makes a claim against DCKAP that the Customer Data infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend DCKAP and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL (I) EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY CUSTOMER AND VENDORS HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), AND (II) EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS SHALL NOT APPLY TO INDEMNIFICATION OBLIGATIONS OF SECTION 9.
11. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement will be construed and controlled by the laws of the State of Texas, without regard to the choice or conflicts of law provisions of any jurisdiction, and the parties consent to the exclusive jurisdiction and venue in the federal and state courts sitting in and for the State of Texas.
DCKAP may, at its sole discretion, host and/or maintain a Platform using a third party technology service provider and Customer acknowledges that DCKAP cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.
Customer agrees that DCKAP may identify Customer as a customer and use Customer’s logo and trademark in DCKAP’s promotional materials. Customer may request that DCKAP stop doing so by submitting an email to email@example.com at any time. Customer acknowledges that it may take DCKAP up to 30 days to process such request. Notwithstanding anything herein to the contrary, Customer acknowledges that DCKAP may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing and to third parties for purposes of due diligence.
All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email) and be addressed according to information provided on an Order Form. All notices, consents and other communications between the parties under a Statement of Services will be sent to the recipient’s address specified thereon. All communications will be deemed to have been received on the date actually received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.
15. FORCE MAJEURE
DCKAP is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Customer or any Authorized User.
Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. DCKAP may sublicense any or all of its obligations hereunder. For the avoidance of doubt, a third party technology provider that provides features or functionality in connection with a Platform shall not be deemed a sublicensee under this Agreement.
DCKAP may modify any part or all of the Agreement by posting a revised version at dckap.com/master-saas-services-and-subscription-agreement. The revised version will become effective and binding the next business day after it is posted. DCKAP will provide notice of this revision by email notification to Customer. If Customer does not agree with a modification to the Agreement, Customer must notify DCKAP in writing within thirty (30) days after DCKAP sends notice of the revision. If Customer gives DCKAP this notice, then Customer’s Services will continue to be governed by the terms and conditions of the Agreement prior to modification for the remainder of Customer’s current term, unless DCKAP determines that it can no longer provide the subscription to Customer under those terms. In this case, DCKAP may terminate the Agreement and/or affected Services upon DCKAP’s notice to Customer.
18. GENERAL PROVISIONS
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. This Agreement, together with Statement of Services entered into hereunder and all exhibits, annexes and addenda hereto and thereto 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. All waivers 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 neither party has authority of any kind to bind the other party in any respect whatsoever. In the event of a conflict between this Agreement and any Statement of Services, such Statement of Services shall prevail unless otherwise expressly indicated in this Agreement or such Statement of Services. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof.
Last Modified: September 3, 2020