SaaS Subscription Services Agreement
Updated: September 8, 2015
- Using the Services.
- This SSA shall commence as of the date set forth in your first Order and, unless earlier terminated, shall remain in effect through the end of the subscription term in any current Order (for each Order, the "Subscription Term", and in aggregate the "Term"). During each Subscription Term, YouEye grants You a nontransferable, nonexclusive, worldwide right to permit those individuals authorized by you, and who are your employees, agents or contractors ("Users"), to access and use the Services subject to the terms of the Agreement.
- Users shall have defined access and usage rights as designated in an Order. Users must have their own, unique user name and password assigned by YouEye, and Users are not allowed to share user names, passwords or accounts.
- During the Term, YouEye shall use its best efforts to make its software platform and systems available to design, program, orchestrate and analyze experience analyses, including access to data storage, analytics and reporting tools. Where professional services conducted by YouEye are included in an Order, YouEye will deliver them in a professional manner, consistent with industry standards.
- Restrictions and Representations.
- You shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ontologies, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services ("Software"); (ii) modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iii) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to YouEye; or (iv) remove any proprietary notices or labels from the Services or Software. You shall use the Services and Software only for your own internal business operations.
- You shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with YouEye's provision of the Services. You shall be responsible for maintaining the security of any equipment You utilize to access the Services via the Internet, and your Users' account access passwords. You agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
- If an Order includes your purchase of customer interview credits ("Credits"), Users will receive, in aggregate, a specified number of Credits for use during the Order's Subscription Term. No refunds or credits will be granted for unused Credits.
- Orders, Payments and Termination.
- Services shall only be made available by providing YouEye with a written and signed Order. Orders are subject to acceptance by YouEye. Unless stated otherwise in an Order, all amounts shall be invoiced upon acceptance of an Order and due within 30 days of the date of YouEye's invoice. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on YouEye's income).
- Additional Services and Credits may be purchased and the Subscription Term for a current Order may be modified by written agreement of the parties as documented in a new Order.
- YouEye may immediately suspend your password, account, and access to the Services if (i) You fail to make payments due in a timely manner after YouEye has provided You with notice of such failure; or (ii) You violate Sections 2a-c or 3 of this SSA. In all other cases, either party may terminate this SSA upon written notice if (a) the other party materially breaches any term or condition, and (b) the breaching party fails to cure such breach within 14 days of receiving written notice thereof. In the event that YouEye terminates based on breach by you, all amounts not yet paid for the remaining Subscription Term, or otherwise payable under this SSA, shall be immediately due. In the event that You terminate based on YouEye's uncured material breach, YouEye shall refund to You the pro rata balance of any prepaid fees for the unused portion of the Subscription Term. Upon termination or expiration of this SSA for any reason: (a) your rights and your User's rights to use the Service shall immediately terminate, and (b) You and all your Users must immediately cease using the Service. Sections 2, 3, 4, 5 shall survive termination of this SSA.
- Upon expiration of an Order's Subscription Term (and never sooner than 30 days following the start of data collection from participants), your right to access and use the Services covered by that Order shall terminate. Notwithstanding the foregoing, if You notify us within 30 days of expiration of the Order, YouEye will permit You to access the Services solely to the extent necessary for You to retrieve Your Data (as defined below) then in YouEye's possession. You acknowledge and agree that YouEye has no obligation to retain Your Data and that YouEye may irretrievably delete and destroy Your Data as it relates to an Order 30 days following the termination or expiration of such Order.
- Intellectual Property.
- You own any data, information or material originated by You that You submit, collect or provide in the course of using the Services ("Your Data"). You shall be solely responsible for the accuracy, quality, content and legality of Your Data, the means by which Your Data is acquired, and the transfer and use of Your Data outside of the Services.
- YouEye owns or has rights to all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by You or any other party relating to the Services or Software shall be owned by YouEye, and You hereby do and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by YouEye.
- If an Order specifies a written deliverable (by way of example, a professional insights report) be created by YouEye's professional services team, such deliverable shall be owned by You and constitute a deliverable under a work for hire arrangement.
- General Provisions.
- Authority and Performance. We each represent and warrant to each other that we have the power and authority to enter into the Agreement. YouEye warrants to You that it will use commercially reasonable efforts to (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a manner consistent with generally accepted industry standards.
- Remedies. Your exclusive remedy for any breach of the express warranty in Section 5(a) shall be re-performance of the deficient Services. If YouEye cannot re-perform such Services as warranted, You shall be entitled to recover a pro-rata portion of the fees paid to YouEye for such Services, and such refund shall be YouEye's entire liability.
- Availability. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond YouEye's control, but YouEye shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services.
- Indemnities. YouEye shall defend, indemnify and hold You harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings ("Claim(s)") made or brought against You by a third party alleging that your use of the Service as contemplated hereunder infringes the intellectual property rights of a third party; provided, that You (a) promptly give written notice of the Claim to YouEye; (b) give YouEye sole control of the defense and settlement of the Claim (provided that YouEye may not settle any Claim unless it results in You being unconditionally released of any and all liability); and (c) provide to YouEye, at YouEye's cost, all reasonable assistance. You shall defend, indemnify and hold YouEye harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against YouEye by a third party alleging that Your Data, or your use of the Services in violation of the Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party or violates any law or regulation; provided, that YouEye (a) promptly gives written notice of the Claim to you; (b) gives You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless it results in YouEye being unconditionally released from any and all liability); and (c) provides to you, at your cost, all reasonable assistance.
- DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, YOUEYE AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,TITLE, NON-INFRINGEMENT AND QUALITY. YOUEYE AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS YOU MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOUEYE AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE, SERVICES WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT NEITHER YOUEYE NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. YOUEYE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY YOU IN THE PRECEDING 12 MONTHS.
- Confidentiality. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information" of the Disclosing Party). Such information includes, without limitation, Your Data, information related to your login identifiers and credentials and the nature and performance of your business. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of the SSA or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by law. Your Data can be destroyed as set forth in Section 3.
- Statistical Information. Notwithstanding anything else in the Agreement or otherwise, YouEye may access data relating to your use of the Services and use Your Data in an aggregated and anonymous manner to compile statistical, performance and other information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate Your Data in a non-anonymous manner and/or identify your Confidential Information. YouEye retains all intellectual property rights in such information.
- Notices. YouEye may give notice applicable to YouEye's Services by means of a general notice on its customer access portal(s), and notices specific to You by electronic mail to your e-mail address on record in YouEye's account information or by written communication sent by first class mail or pre-paid post to your address on record in YouEye's account information. If You have a dispute with YouEye, and wish to provide a notice under the Agreement, send it to YouEye at 655 Castro Street, Ste 5, Mountain View, CA 94041, U.S.A.
- Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party.
- No Relationship. No joint venture, partnership, employment, or agency relationship exists between YouEye and You as a result of the Agreement or use of the Services.
- Governing Law and Venue. Any action, Claim, or dispute related to the Agreement will be governed by California law, excluding its conflicts of law provisions, and controlling U.S. federal law. The parties consent to the exclusive jurisdiction of the Superior Court of the Santa Clara County, California, and/or the United States District Court for the Northern District of California. The Uniform Computer Information Transactions Act will not apply to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorney's' fees. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision.
End of Agreement