SOFTWARE AS A SERVICE TERMS AND CONDITIONS
(Last Updated: October 10, 2022)
These terms and conditions and any accompanying Connectbase product and pricing document (any Order as defined below), executed as a written and signed standalone order or agreed to as part of an online order process on Connecbase’s website, is BETWEEN Connected2Fiber, Inc., d/b/a Connectbase (“Connectbase” or “Company”) AND the named entity on any Connectbase Order (“Customer”), (collectively the “Agreement”) is a binding contract between Connectbase and the Customer.
“Affiliate” means any entity, which directly or indirectly controls, is controlled by, or is under common control of the Customer.
“API” means application programing interface.
“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. The Agreement shall apply to each of the Customer’s Affiliates, provided they use the Services.
“Days” means calendar days, unless otherwise specified.
“Documentation” means any written or electronically transmitted information provided to the Customer by Company in connection with the Services.
“Fees” means the amounts payable to Company by the Customer in exchange for the Services ordered or agreed to as specified in the written Order and subject to the Terms, and any additional amounts otherwise due and payable under the Agreement, including, without limitation, late fees and collection costs.
“Order” means any SaaS Agreement Order, Order, Order Form, Amendment, Addendum, or Statement of Work (“SOW”) that sets forth the Services and Fees provided by Company to Customer.
“Services” means any online, cloud-based, associated mobile applications or web-based platform and services, including any API’s that the Customer purchases or uses from Company.
“Terms” means these terms and conditions applicable to the Customers use of the Services provided by Company.
“Users” means individuals who are authorized by the Customer to use Company’s Services, for whom subscriptions have been purchased or made available, and who have been supplied user identifications and passwords or granted access by the Customer to create user identification passwords or by Company at the Customer’s request. Users may include, but are not limited to, the Customer’s employees, members, consultants, agents, or contractors; or third parties with which the Customer transacts business (each, a “User”). The number of allowed Users is defined in the Service Capacity Section of any Order.
- SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services set forth in any Order to this Agreement. As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate.
1.2 During the Service Term or any Renewal Term of this Agreement, Customer will receive a nonexclusive, non-assignable, royalty free, right to access and use the Services subject to the terms and conditions of this Agreement and up to the number of Users set forth in the Service Capacity section of any Order.
1.3 Subject to the terms hereof, Company will provide Customer with reasonable technical support services, consistent with the industry standard and in accordance with the standard practice of the Company, with chat, phone, email, and system support provided as described in Exhibit C (Technical Support Terms).
- RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels from the Software. Customer shall not embed, in whole or part, any Company applications, Services, content, documentation or Software, or otherwise permit access to Company applications, Services, content, documentation or Software in any Customer, or Customer Affiliate public or private website, portal, or application without Company’s express written consent.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer will use the Services only in compliance with all applicable laws and regulations. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it reasonably believes may be (or is alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any Equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. Customer shall not allow end-users to share user login credentials to access Company Services. Sharing of login credentials will be grounds for suspension of access to the Services or termination with cause by Company as permitted under Section 5.3. Additional end-users and associated charges for such end-users may be added through a new Order.
2.5 By using Company APIs, Customer agrees to comply with the API Terms and Conditions located at https://www.connectbase.com/api-terms, as the same may be updated from time to time. In order to access certain APIs Customer may be required to provide certain information (such as identification, contact details, and an email address) as part of the registration process for the APIs, or as part of your continued use of the APIs. Any registration information Customer gives to Company will always be accurate and up to date and Customer will inform Company promptly of any updates including required removals. Only registered customer domains are allowed to be used and unless prior approval is obtained from Company and the registered customer’s admin, personal/non-corporate emails as identifiers are not permitted.
- CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose features, functionality and performance of the Services relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). Proprietary Information of Company includes any Provider IP (as defined in Section 3.2) as well as any data that is not Customer Data (“Company Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect the Proprietary Information of the Disclosing Party, and (ii) not to use or divulge to any third person any such Proprietary Information, except in performance of the Services or as otherwise permitted herein. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any 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 without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or is required to be disclosed by law. Upon the termination of this Agreement or any Order, Customer shall return or destroy any Provider IP or Company Data and certify the return or destruction of such Company Data within fifteen (15) business days.
3.2 Customer acknowledges that all right, title, and interest in and to (a) the Services and Software, all improvements, enhancements, or modifications thereto, together with its codes, sequences, derivative works, organization, structure, interfaces, any documentation, data, trade names, trademarks, patents, patent applications, or other related materials, and (b) any software, applications, inventions, or other technology developed in connection with Services or support (collectively, the “Provider IP”), is, and at all times shall remain, the sole and exclusive property of Provider. The Provider IP contains trade secrets and proprietary information owned by Provider and is protected by copyright, trademark, patent, and other laws relating to intellectual property. Except the right to use the Services, as expressly provided herein, this Agreement does not grant to Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses with respect to the Services or Software.
3.3 Compelled Disclosure. In the event that Receiving Party is required (by oral questions, interrogatories, demands for information or documents, subpoena, order of a court or regulatory body, civil investigative demand or other process) to disclose any Proprietary Information, before complying with such requirement, Receiving Party shall provide Disclosing Party with prompt notice of such requirement so that Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance by Receiving Party with the provisions of this Agreement. Receiving Party agrees to cooperate with Disclosing Party (at Disclosing Party’s expense) in Disclosing Party’s efforts to obtain such protective order or other remedy. If for any reason Disclosing Party does not obtain such protective order or other remedy, unless Disclosing Party shall otherwise waive its rights hereunder, Receiving Party shall be permitted to disclose only that portion of the Proprietary Information that it is legally compelled to disclose. If Disclosing Party obtains such protective order or other remedy, Receiving Party shall refrain from disclosing Proprietary Information in accordance herewith and such protective order or other remedy.
3.4 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (specifically Customer’s access methods, use of authorized credentials, review of performance queries on data, speed of data return, validity of data), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, so long as such Customer Data is not identifiable by name to any other third party, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein. To the extent any such data is public or becomes known to Customer and Customer determines that it is not sufficiently de-identified, Company shall remove the data from public view and cease further use, or de-identify such data to the satisfaction of Customer.
- PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described in any Order for the Services in accordance with the terms therein (the “Fees”). Customer will make the first payment upon execution of this Agreement, unless otherwise specified in the Services Fees Section of any Order, and will make additional payments annually thereafter, unless otherwise agreed to in this Agreement. If Customer’s use of the Services exceeds the Service Capacity set forth in any Order or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional Fees in the manner provided herein. Company reserves the right to increase the Fees or applicable charges by an amount not to exceed five percent (5%) and to reflect any adjusted charges and Fees at the end of the Service Term or then current Renewal Term (as defined in Section 5.1), upon ninety (90) Days prior written notice to Customer (which may be sent by email). If during any Term the Customer experiences a material change in Customer’s business operations, including, but not limited to an acquisition of another company, which impacts the use of Company Services, Company and Customer shall engage in negotiations to adjust the Fees or applicable charges for the remainder of the current Term from the date material change. If a purchase order is required for payment, Customer agrees to provide the applicable purchase order number(s) to Company, and such purchase order number will be listed in the Customer Billing Information section of this Agreement. If no purchase order is required for payment, Customer guarantees that payment will not be delayed.
4.2 Disputed Amounts. The Customer will provide the Company with written notice of any good faith dispute regarding the Fees within ninety (90) Days of the invoice date for which the Customer is disputing any Fees, and shall include the disputed amount (the “Disputed Amount”) supported by a bona fide explanation and documentation supporting the Disputed Amount, and work in good faith with the Company to resolve any such disputes in an expeditious manner; in the meantime, the Customer will pay the undisputed portion of any invoice hereunder and the Company will continue performance of the Services. If the parties are unable to resolve any Disputed Amounts under this Section 4.2 within thirty (30) Days after written notice to the Company of the dispute, each party is free to seek relief as set forth in Section 13 of this Agreement. Any invoice amount not disputed within thirty (30) Days of the invoice date is deemed correct and binding on the Customer.
4.3 Company will bill Customer through an invoice and full payment for invoices issued must be received by Company thirty (30) Days after Customer’s receipt of the invoice, unless otherwise specified in any Order, except for any Disputed Amount defined in Section 4.2 above. Unpaid amounts, except for Disputed Amounts, are (1) subject to a finance charge of one-and one-half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, (2) may be subject to all expenses of collection incurred by Company. and (3) may result in termination of Service under Section 5.4. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
- TERM AND TERMINATION
5.1 This Agreement will commence on the Effective Date and thereafter will remain in effect unless and until terminated as set forth in this Section 5. (the “Term”), provided that this Agreement will not terminate with respect to any then-current Order that has not expired, or a party has not terminated. Separate from the Term of this Agreement, each Order will commence on its respective effective date and thereafter will remain in effect for the term stated therein (“Service Term”). Subject to earlier termination as provided below, the Service Term specified in any Order unless otherwise agreed to in writing shall be automatically renewed for an additional period of one (1) year (“Renewal Term”), unless either party requests termination by written notice at least sixty (60) Days prior to the end of the then-current Service Term.
5.2 Early Termination Fees. Early Termination Fees will not apply to a Service Term of one (1) year or less. However, in the event Customer terminates any Order prior to the end of the Service Term (or prior to the end of any Renewal Term if the Renewal Term is greater than one (1) year), unless otherwise agreed to by the Parties, Customer will be assessed an early termination fee equal to the amount remaining in either the Service Term (or Renewal Term if greater than one (1) year) calculated from the date Customer notifies Company in writing of any early termination. Early Termination Fees are due and payable to the Company immediately upon written notification of early termination by Customer.
5.3 Termination for Breach In addition to any other remedies it may have, either party may also terminate this Agreement in the event of a material breach of the Agreement or any Order by the other party which remains uncured after thirty (30) Days written notice to the other party.
5.4 Termination for Non-Payment. Company may, upon written notice to Customer, terminate this Agreement if Customer has failed to pay any undisputed charges ten (10) days after receiving written notice from Company of the possibility of termination for failure to make such payments.
5.5 In the event of either Termination for Breach by Customer or Termination for Non-Payment by Customer in Sections 5.3 and 5.4 above, Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
5.6 Registering using a non-company/non-corporate email address or unverifiable email address for use with Company APIs may result in termination of, or suspension of access without notice and Company will not be liable for any damages related to such termination or suspension. Companies with Authorized Users of an API registered using a personal email or company/corporate address are responsible for terminating access to the API upon termination of employment with Customer and the Customer remains liable for any/all usage charges associated with accessing/using the API until the Customer terminates access to any API.
- WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform Services in a professional and workmanlike manner. Company represents and warrants to Customer that the Services and any underlying data or software contained therein do not infringe on any United States patent or any copyright or misappropriation of any trade secret, or contain any viruses, malware, or other malicious code. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. In the event of such unscheduled service disruption, customer shall be entitled to an equitable refund of fees paid. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED.
Company shall hold Customer harmless from liability to third parties resulting from alleged or actual infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
In addition, each party will indemnify and defend the other party (and its Affiliates’ respective directors, officers, agents, and employees) from and against all any and all third party damages, fines, penalties, liabilities (including settlements and judgments), reasonable costs and expenses (including interest, court costs, reasonable fees and expenses of attorneys or other fees and expenses of litigation or other proceedings) claims or suits arising out of a claim by a third party against them resulting from or alleged to have resulted from (i) a breach of any explicit warranty or representation, or (ii) breach of data protection obligations.
- LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR ANY INDEMNIFICATION OBLIGATION OR BODILY INJURY OF A PERSON, NEITHER PARTY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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, or will have the power to, assign this Agreement without the prior written consent of the other party, except that Customer may assign its rights and obligations under this Agreement, in whole or in party, to any then-existing affiliate or subsidiary of Customer. In the event of any merger, sale of all or substantially all of Customer’s assets, or other similar transaction; provided, however, that Customer must first obtain the prior written consent of Company should Customer seek to assign the Agreement to an existing customer of Company. Notwithstanding the foregoing, in no event will an assignment relieve Customer of its obligations under this Agreement. 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 Customer does not have any authority of any kind to bind Company 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.
Any action related to this Agreement will be governed by Delaware law and controlling U.S. federal law. No choice of law rules of any jurisdiction will apply. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Delaware. This Agreement, together with the Schedules or Exhibits annexed hereto, represents the parties’ entire understanding relating to the use of the Service and supersedes any prior or contemporaneous, conflicting, or additional, communications. No text or information set forth on any Order, preprinted form, or document shall add to or vary the terms and conditions of this Agreement, unless otherwise agreed to in writing by the parties. The failure of Company to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Company in writing Company reserves the right to assign its right to receive and collect payments hereunder. Any rights not expressly granted herein are reserved by Company.
- PRESS RELEASE
Neither party shall publish any press release, make any other public announcement or otherwise communicate with any news media concerning this Agreement without the prior written consent of the other party and the Parties will mutually work together to review and approve any press release; provided, however, that nothing contained herein shall prevent either party from promptly making all filings with governmental authorities as may, in its judgement be required or advisable in connection with the execution and delivery of this Agreement.
Customer agrees to reasonably cooperate with Company to serve as a reference account upon request of the Company, if the Customer is satisfied with the work completed and provided by the Company.
Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by registered or certified mail return receipt requested, (c) sent by overnight courier, (d) sent by facsimile (with a hard copy mailed on the same date), (e) by email whose receipt is acknowledged by an officer of the receiving Party. If to Company, a notice shall be forwarded to the Company at 134 Flanders Road, Westborough, MA 01581, Attn. Yossi Hazan, CFO, with a copy to the Legal Department, and if to Customer, a notice shall be forwarded to Customer at the address provided on the Agreement signature page. Notices shall be considered to have been given at the time of actual delivery in person, five (5) business days after posting if by mail, one (1) business day if by overnight courier service, or upon receipt of machine confirmation of successful transmission by facsimile or email as described herein.
- DISPUTE RESOLUTION
Customer’s satisfaction is an important objective to Company in performing its obligations under this Agreement. If a dispute arises between the parties relating to the interpretation or performance of this Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within fifteen (15) days after such meeting, the parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to it.