SAAS SERVICES AGREEMENT
Last Revised: December 1, 2021
This Agreement is made between Nines and Customer and will be effective upon Customer’s initial access to the Service through any online provisioning, registration, or order process. This Agreement governs Customer’s use of the Service.
For good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:
“Customer Data” means all data or information submitted by Customer to the Service.
“Order Form” means the online document(s) for placing subscription orders entered into between Customer and Nines. All Order Forms are incorporated into this Agreement by reference.
“Users” means Customer, and individuals authorized by Customer, to use the Service.
- Usage Rights and Restrictions
2.1 Subject to the terms of this Agreement and each Order Form, Nines grants Customer a non-exclusive, non-transferable, non-sublicensable right, during the applicable Subscription Term specified in the Order Form, to access and use the Service for Customer’s internal business purposes. Customer may permit Users to use the Service and will be responsible for their compliance with this Agreement. Usage is limited to any metrics and volumes specified in an Order Form. Customer agrees that its subscription to the Service is neither contingent on the delivery of any future functionality or features nor dependent on any public comments made by Nines regarding the same.
2.2 Customer will (i) be responsible for the accuracy and legality of, and the means by which Customer acquires, Customer Data, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and (iii) use the Service only in accordance with this Agreement and applicable laws and regulations and otherwise comply with applicable laws and regulations in connection with this Agreement.
2.3 Customer will not (i) make the Service available to anyone other than Users, (ii) distribute, sell, resell, rent, or lease the Service, (iii) store or transmit infringing or otherwise unlawful material or store or transmit malicious code or material on the Service, (iv) interfere with or disrupt the integrity, security, or performance of, or data contained on, the Service, or (v) disassemble, decompile, reverse-engineer, copy, translate, or make derivative works of or remove any proprietary notices or labels from the Service.
2.4 The Service may contain links to, integrate with, or provide the ability for Customer or Users to access third party products, services, or websites, such as, for example, payroll services or expense management services. Nines will not be responsible in any way for any such third party products, services, or websites. Customer is solely responsible for identifying and complying with the applicable third party terms and conditions for installed or enabled third party products, services, or websites. If Customer installs or enables third party products, services, or websites for use with the Service, Customer hereby consents to the disclosure by Nines of Customer Data to such provider for the interoperation of the third party products, services, or websites with the Service. Nines shall not be responsible for any disclosure, modification, deletion, loss, or unauthorized use of Customer Data resulting from any such access by third party products, services, or websites installed or enabled by Customer and/or its Users. Nines may update, upgrade, revise, or change the Service and its features and functionality (collectively, “Updates”) at any time, provided that Nines will not materially decrease the functionality of the Service during a Subscription Term. Updates are considered part of the Service.
- Customer Data
3.1 As between the parties, Customer owns and retains all rights in and related to Customer Data. Customer will collect and maintain any personal data in Customer Data in compliance with all applicable data privacy and protection laws and regulations. Customer grants Nines a nonexclusive right to process Customer Data to provide the Service. Customer may access, export, and retrieve Customer Data at any time during a Subscription Term. Customer will not store or transmit (i) protected health data, as defined in HIPAA, (ii) financial information protected under GLB, (iii) information protected by ITAR, (iv) information subject to PCI Security Standards, or (v) export-controlled matter, in the Service.
3.2 Nines will maintain industry-standard administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Customer Data. Customer agrees that Nines may disclose Customer Data (i) when compelled by law or as otherwise required or mandated by law, (ii) to third party service providers that Nines retains to provide the Service, provided that Nines has executed a written agreement with such third party service providers requiring them to protect Customer Data to the same extent as set forth in this Agreement, and (iii) as expressly permitted in writing by Customer. Nines reserves the right to utilize Customer Data for statistical, marketing, and network analysis as well as to analyze, improve, and further develop Nines products and services, provided it uses commercially available methods to anonymize Customer Data prior to any such usage.
3.3 California Privacy. To the extent that Customer Data contains “personal information” that is subject to the California Consumer Privacy Act of 2018, its implementing regulations, and any amendments thereto (collectively, the “CCPA”), Nines agrees that it shall process such personal information as a service provider (as defined under the CCPA) and shall not (i) retain, use or disclose personal information for any purpose other than the purposes set out in this Agreement and/or as permitted by the CCPA; or (ii) “sell” (as defined and understood within the requirements of the CCPA) personal information.
- Intellectual Property Rights
4.1 Nines and its affiliates and/or licensors own all intellectual property and other rights in and related to the Service, as well any improvements, related knowledge, or processes, and derivative works thereto. All rights not expressly granted to Customer herein are reserved by Nines and/or its licensors.
4.2 Nines will own and have the unrestricted right to use and incorporate into the Service or other Nines offerings, any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, including Users, relating to the Service.
- Confidentiality. The parties may exchange Confidential Information in connection with this Agreement. “Confidential Information” or “CI” means all information disclosed by a party (“Discloser”) that should reasonably be understood by the other party (“Recipient”), because of markings, the circumstances of disclosure, or the nature of the information itself, to be confidential to Discloser. CI may be disclosed in writing, electronically, or by any other means. Recipient will (i) take reasonable steps to protect Discloser’s CI from unauthorized access, use, or disclosure similar to those steps it would take to protect its own, similar information, (ii) not disclose CI to any third party, and (iii) not use Discloser’s CI other than in connection with this Agreement. Recipient may disclose CI to its employees, representatives, and other agents (“Representatives”) who have a need to know the CI for purposes of this Agreement, and who are required to protect the CI under the terms of a written agreement with restrictions at least as protective as those herein. Nines’ CI specifically includes the Service and the existence of this Agreement. The parties’ obligations with respect to Confidential Information will survive termination of this Agreement for three (3) years, except for information that is a trade secret, which will remain subject to the obligations hereunder as long as such information is a trade secret under applicable law.
6. Disclaimer of Representations and Warranties; Indemnity; Limitation of Liability
6.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS”. NINES DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, IN CONNECTION WITH THIS AGREEMENT, THE SERVICE, OR REGARDING RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. NINES EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT. NINES DOES NOT REPRESENT OR WARRANT THAT USE OF THE SERVICE WILL BE SECURE, ERROR-FREE, OR UNINTERRUPTED OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS.
Customer will, at its sole expense, defend and indemnify Nines, from any third party claims, demands, or proceedings and pay all damages, fees, and costs that are awarded in a judgment or agreed to in a settlement, arising out of (i) Customer Data, (ii) use of the Service in violation of applicable laws or regulations or this Agreement, (iii) arrangements or agreements between Customer and its employees managed through the Service and/or Users, and (iv) an allegation that information and/or materials provided to Nines by Customer under this Agreement infringe the proprietary rights of such third party.
6.3 Limitation of Liability. Subject to any requirements and limitations, if any, of applicable law, and except for the indemnity obligations in Section 6.2 and Customer’s payment obligations, neither party will be liable to the other party, regardless of the theory of liability, for (i) indirect, special, consequential, collateral, or incidental damages, including, without limitation, any damage or injury to business earnings, lost profits, data, or goodwill suffered by the other party arising from and/or related to this Agreement, even if advised of the possibility of such damages, and (ii) cumulative direct damages arising from and/or related to this Agreement that exceed the Subscription Fees paid by Customer in the twelve (12) months preceding the first incident giving rise to liability.
7. Fees; Payment Terms. Pricing for the Service will be as set forth at www.ninesliving.com.Customer will pay the fees for the Service set forth in an Order Form. All fees for the Service will be paid in advance of the applicable Subscription Term. All Order Forms are non-cancelable and all fees are non-refundable, unless otherwise agreed to by the parties. Fees under this Agreement do not include any taxes, including, but not limited to, value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (“Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder.
Customer authorizes Nines (through its third party payment processor) to charge Customer’s approved credit card for recurring charges, including applicable Taxes, for the Service set forth in the Order Form, as well as all other charges made under this Agreement. Use of a credit card is subject to the terms and conditions in Customer’s card member agreement, including fees that may be charged by the issuer. If there is a change to Customer’s credit card account information, including expiration date, Customer must update its payment information by contacting email@example.com to avoid suspension or termination of the Service. Nines may also update Customer’s payment information with information provided by the payment service providers. Customer authorizes Nines to continue to charge Customer’s credit card following any update to Customer’s information.
- Term; Termination; Effect of Termination.
8.1 This Agreement commences on the effective date of the first Order Form between the parties and continues until all subscriptions granted in accordance hereunder have expired or been terminated.
8.2 Subscriptions to the Service commence on the Subscription Start Date and continue for the Subscription Term, both as specified in the applicable Order Form. Following the initial Subscription Term, and unless otherwise agreed to by the parties, the subscription will automatically renew for additional one (1) month or one (1) year Subscription Terms, as applicable, unless either party gives the other party written notice (email acceptable) of non-renewal at least thirty (30) days prior to the end of the then-current term. Any pricing changes for renewal terms will be reflected on the renewal invoices.
8.3 Either party may terminate this Agreement or an Order Form if the other party has not cured a material breach hereof (or thereof) within thirty (30) days of receiving a written breach notice from the other party. Upon any such termination by Customer, Nines will promptly provide Customer a refund of any unused, prepaid Subscription Fees covering the remainder of the Subscription Term after the effective date of termination. Upon any such termination by Nines, Customer will pay any unpaid Subscription Fees covering the remainder of the Subscription Term(s) of all Order Forms after the effective date of termination.
8.4 Upon any expiration or termination, Customer will immediately cease any further use of the Service and Nines will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Nines will, unless legally prohibited or directed by Customer, delete Customer Data in Nines’ systems or in Nines’ possession or control.
8.5 In addition to any of its other rights or remedies in this Agreement, Nines may, in its reasonable discretion, deactivate Customer’s user name(s) and password and/or suspend provision of the Service, upon prior written notice to Customer as the circumstances permit (i) if Customer is thirty (30) days or more overdue on a payment, (ii) if Nines deems such suspension necessary as a result of Customer’s breach of Section 2, (iii) if Nines reasonably determines suspension is necessary to avoid material harm to Nines (including the security of the systems used to provide the Service) or its other customers, or (iv) as required by law or at the request of governmental entities.
- Any terms that by their nature extend beyond expiration or termination of this Agreement will survive.
9. Modifications; Miscellaneous
Nines may modify or update this Agreement from time to time. Nines will post the modified or updated Agreement to this website and update the Last Revised date above. Modifications and updates will become effective upon posting. It is Customer’s responsibility to periodically review this Agreement for any changes. Customer’s continued use of the Service after any modifications or updates constitutes Customer’s acceptance of this Agreement, as updated. If Customer does not agree to this Agreement or any updated Agreement, Customer may not use or access (and/or shall immediately discontinue further use of and/or access to) the Service.
This Agreement and any related action will be governed and interpreted by the laws of the State of New York, excluding its conflicts of laws rules. Venue for any dispute arising out of this Agreement will be the state or federal courts located in New York, NY, and each party (Customer and Nines) consents to personal jurisdiction to such court(s) and also waives any right it may otherwise have to challenge the appropriateness of such fora. This Agreement and all Order Forms hereunder constitute the entire agreement between the parties with respect to the subject matter herein and supersede all other written or oral agreements and representations related thereto. No terms in a Customer purchase order or other order documentation will be incorporated into this Agreement, and all such terms are null and void. This Agreement, and the rights and obligations hereunder, may not be assigned without the prior written consent of the non-assigning party, which will not be unreasonably withheld, provided that Nines may assign this Agreement, and the rights and obligations hereunder, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any assignment in violation of this provision is void and without effect. The parties are independent contractors. Nothing in this Agreement creates an agency relationship, partnership, employment, joint venture, or similar relationship between the parties. There are no third party beneficiaries to this Agreement. Neither party will use the other’s name or logo in any press release or any other public statements or marketing materials without the prior written consent of the other party in each instance. Neither party will be responsible for delays or failures to perform (except with respect to payment obligations) resulting from acts beyond the reasonable control of such party. All notices pursuant to this Agreement will be in writing and will be deemed duly given when delivered at the address set forth in the applicable Order Form and directed to a party’s Legal department. Billing and system related notices will be provided to Customer’s designated billing contact or system administrator, as applicable.