Master Services Agreement
These Master Terms represent one component of the Agreement for Licensor’s products, services, and partner programs.
1.1.“Agreement” shall mean the (i) Master Terms, (ii) supplemental terms (iii) other documents posted on Licensor’s website or other URL which are expressly incorporated therein by reference and (iv) Order Forms
1.2. “Sapper” shall mean and refer to Sapper Software, Inc. the legal entity providing the Services.
1.3. “Application” An Application is a business service, technology service, data store, cloud/SaaS application, on-prem or proprietary application. For example, Salesforce, Workday , ServiceNow, Snowflake, MongoDB database, FTP/SFTP server etc.
1.4. “API” means a Web Service requiring separately configured and distinct application services deployed on Licensor’s platform (“distinct” in that it requires its own reporting system or configuration, developer access key database, inbound or outbound URL, and/or community site instance, or is served by or under a separate legal entity, company business unit, publishing group, product brand or application.
1.5. “Connection” A Connection is the unit of connectivity that enables an Application Task in a workflow to connect to an application endpoint. For example, when Sapper connects to a specific Application Endpoint like Salesforce (via information like Salesforce URL, Authentication Tokens) it establishes a connection to Salesforce. Each such unit of connectivity established between an Application Task and an Application Endpoint is a separate Connection.
1.6. “Credentials” shall mean and refer to a user’s authentication information typically a password, a token, or a certificate.
1.7. “Data pipeline” means automatically collecting data from many disparate sources, then transforming and consolidating it into a destination
1.8. “Source” means, any system like databases, data warehouses, Applications like Salesforce or any object store like S3. Generally, pipelines will ingest data from several sources either by streaming or batch processing.
1.9. “Destination” means, any system like database, data warehouse, data lake, or object store like S3 datastore where the processed data will be staged. Example – Snowflake, Redshift or Azure Blob
1.10. “Container” means an isolated operating system environment on which the Software is licensed to run, that can be limited in terms of CPU, memory and disk usage as well as network access. They are decoupled from the underlying infrastructure; they are portable across clouds and OS distributions.
1.11. “Processed Records” are the total number of records that are ingested and processed through the data pipeline. Our data pipeline pricing is based on number of processed records. For example, Processed Records
1.12. “Licensed Service” shall mean and refer to Sapper’s data pipeline-based software tools enabling the Services identified on the Order Form.
1.13. “Extracted Data” means, any data that you or your Authorized Users enable Sapper to access and extract from the Servers to the Platform.
1.14. “Loaded Data” means, any data that Sapper transfers or loads onto the Servers via the Platform.
1.15. “Metadata” means, any and all data that Sapper may collect from you as a result of your registration with the Platform, Website, and/or Service, including any and all personally identifiable information, and monitoring your use of the Service, the Website and the Platform, including any and all analytics data.
1.16. “Servers” means the servers owned or controlled by you or your third-party hosting providers, which shall host the Extracted Data and/or the Loaded Data after it is extracted and transferred via the Platform. In limited circumstances, upon the agreement of the Parties, Sapper may manage a separate instance for you on the servers of Sapper’s third-party hosting provider.
1.17. “Update” means any release or update of or for the Platform or Services that is made generally available by Sapper to its customers during the term of this Agreement.
1.18. “Platform” means Sapper’s proprietary, cloud-based platform.
1.19. “Core Service Downtime” When a Core Service, is unavailable. For example, if a user tries to access Sapper’s Web Application, and receives a 404 page, or the application will not load it is considered unavailable. Downtime is measured in minutes.
1.20. “Maximum Available Monthly Minutes” is the absolute maximum number of Monthly Pipeline Minutes across all of Customer’s Services, that is not to exceed the total minutes in an average month (43,000).
e.g, if Customer has two pipeline services, HubSpot, which ran for a total of 25,000 minutes, and Greenhouse, which ran for 12,000, Customer’s Maximum Available Monthly Minutes would equal 25,000.
1.21. “Core Service Monthly Uptime Percentage is calculated as Maximum Available Monthly Minutes less Downtime divided by the Maximum Available Monthly Minutes. Monthly Uptime Percentage is represented by the following formula:
MONTHLY UPTIME % = (MAXIMUM AVAILABLE MINUTES – DOWNTIME) / MAXIMUM AVAILABLE MONTHLY MINUTES
1.22. “Core Service Credit Calculation” If a service is considered to be down longer than the Monthly Uptime Percentage, and if Customer has purchased Sapper’s Uptime SLA, Customer will accrue Service Credits. Service Credits for Core Services is represented by the following formula:
SERVICE CREDITS = DOWNTIME * APPLICABLE MONTHLY SERVICE FEES * SERVICE CREDIT PERCENTAGE
1.23. “Downtime for Data Delivery Service” It will begin to accrue after the service has not been successfully loading data into Customers target destination for the length of the Normal Update Time plus the Allowed Downtime Interval. The Allowed Downtime Interval for Data Delivery Services is 12 hours + the connector’s Normal Update Time.
1.24. “Normal Update Time” is the average time between successful syncs over the previous 14 days.
1.25. “Automation” An Automation is composed of one or more Tasks that are automatically carried out to automate a specific function. For example, a Lead Automation can automate the process where a Lead created in Marketo automatically creates a Lead in Salesforce.
1.26. “Subscription Service” shall mean and refer to Sapper’s data pipeline-based software tools enabling the Services identified on the Order Form.
1.27. “Services” shall mean and refer to the Subscription Service and/or the Professional Services provided by Sapper.
1.28. “Authorized User” means any of your current employees, consultants, or agents whom you authorize to access and use the Platform pursuant to this Agreement; provided, however, that any consultants’ or agents’ access and use of the Platform shall be limited to their provision of services to you. You are responsible for the acts and omissions of your Authorized Users and any other person who accesses and uses the Platform using any of your or your Authorized Users’ access credentials, and all obligations of yours under this Agreement shall apply fully to any such Authorized User or other person as if they were “you” under this Agreement.
1.29. “Billing Information” means any of your billing information, including, without limitation, bank account numbers, credit card or debit card numbers, account details, ACH information, and similar data.
1.30. “Customer Data” means collectively the Loaded Data, the Extracted Data, and any other applications, data, data files and software provided by Customer or any Authorized User of Customer that reside on, or runs on or through, the Platform. Customer agrees not to include any production data in its Customer Data during the Trial Period.
1.31. “Personal Information” means personal or personally identifiable data and/or records of or regarding your or your Affiliates’ officers, directors, employees, investors, customers and/or prospective customers.
1.32. “Destructive Elements” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Platform or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Platform to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with operations.
1.33. “Prohibited Content” means content that is illegal under applicable law or contains Sensitive Personal Information or violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets or contains indecent or obscene material contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights or promotes unlawful or illegal goods, services, or activities or contains false, misleading, or deceptive statements, depictions, or sales practices or contains Destructive Elements or is otherwise objectionable to Sapper in its sole, but reasonable, discretion.
1.34. “Sensitive Personal Information” means the following types of data: any financial information (including, without limitation, Billing Information and cardholder or sensitive authentication data, as those terms are defined under the Payment Card Industry Data Security Standard), personally identifiable financial information as defined by and subject to the Gramm-Leach-Bliley Financial Modernization Act of 1999 (“GLBA”), country identification numbers, (including, without limitation, Social Insurance Number, Social Security Number, or other governmentally-issued identification number such as driver’s license or passport number drivers’ license numbers), data on any minor under the age of thirteen that would be subject to the Children Online Privacy Protection Act (“COPPA”), education records, as defined under the Family Educational Rights and Privacy Act of 1974 (“FERPA”), any protected health information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), special categories of personal data identified in Article 9 of the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and personal data relating to criminal convictions and offences.
1.35. “Documentation” means the documentation provided with the Platform or Services to Customer, or made available on the Website, together with any and all new documentation releases, corrections and updates furnished by Sapper to Customer under this Agreement.
1.36. “Data Record” means data that is received by Licensor from the Customer, Customer’s authorized vendor, Affiliates, or other designees that is populated from information provided by Customer or Shopper as a result of transactions (such as from e-commerce or HRIS systems), events (such as a website log-in), information associated with custom data attributes as specified by Customer, or responses to Customer’s custom questions in the Subscription service.
1.37. “Enterprise” means (unless otherwise set forth in an Order Form) an unlimited Number of Units of the Software, where the Number of Units is identified as Enterprise in the Order Form, to be deployed by Customer until the Enterprise Term Expiration Date set forth in the Order Form, (the “Enterprise Term”), at which time, the Number of Units by License Type then deployed and in use by Customer becomes fixed and Customer may not thereafter deploy additional Units. During the Enterprise Term and thereafter, Customer’s right to deploy shall not extend to any Extraordinary Corporate Event. Customer hereby agrees to provide Licensor, within sixty (60) days after the end of the Enterprise Term, written notice of the Number of Units deployed at the end of the Enterprise Term by Unit and License Type.
1.38. “ISV Customer” means a Customer who is an independent software vendor and is designated as an ISV Customer in an Order Form.
1.39. “Maintenance” means the provision of Updates and technical support services to resolve defects according to problem severity pursuant to current support and severity levels set forth in the Service Level Guide. Unless otherwise stated in an Order Form, Customer is entitled to the lowest support level available from Licensor for the applicable Software.
1.40. “Multi-tenant” means an environment using the same Software and interfaces to configure resources and isolate Customer-specific traffic and data.
1.41. “Number of Units” means for each Order Form the entitlement to the Software and for multiple Order Forms, collectively, the cumulative entitlement to each of the Software as designated and/or defined in applicable Order Forms, and including, if applicable, the current number of deployed Units as reported by Customer upon expiration of a Project or Enterprise Term.
1.42. “Order Form” means any written order, whether in physical or electronic format, for Software or services, including a Purchase Order, Work Order, statement of work, on-line orders, or other form of an ordering document delivered to or made available to Licensor through a medium or channel approved by Licensor, which is subject to, and incorporates by reference, the Agreement or other terms negotiated by the parties
1.43. “Unit” means a license restriction describing the manner in which a copy (or multiple copies) of the Software may be deployed (including, without limitation, Site, Processor, Pack, Named User, Connected Processor, and Processor Source Locked) and is the mechanism used to determine the Number of Units licensed under this Agreement, an Order Form or a purchase order.
1.44. “Unlimited” means an unlimited Number of Units of the Licensor Software to be deployed by Customer during the Subscription Term. During the Subscription Term, Customer’s right to deploy shall not extend to any Extraordinary Corporate Event.
1.45. “Updates” means Software bug fixes, enhancements, and upgrades, if and when made generally available by Licensor under Maintenance. Updates may include new or additional Platforms that are deemed (at Licensor’s sole discretion) to have no more than a minimum difference in price, features and functionality from previously available Platforms.
1.46. “User Record” means a Shopper’s record that is populated with data received by Licensor from the Customer, Customer’s authorized vendors, Affiliates, or other designees in the Subscription service.
1.47. “Work Order” means an Order Form under which a Customer acquires Consulting Services from Licensor or and which has been signed by Customer.
2. Terms of Services
2.1. License. Sapper hereby grants Customer a non-exclusive, non-transferable, worldwide right and license to use the Subscription Service for Customer’s internal business purposes only, subject to the terms of this Agreement and the applicable Order Form(s).
2.2. License Restrictions. Customer acknowledges that the Subscription Service and its structure, organization, and source code, all together, and separately, constitute valuable trade secrets of Sapper. Accordingly, Customer agrees not to (and not to permit any third party to): (a) modify, adapt, translate, or create derivative works from the Subscription Service; (b) merge the Subscription Service with other software; (c) distribute, sublicense, lease, rent, loan, or otherwise transfer the Subscription Service to any third party; (d) disclose the results of any benchmark testing, technical results or other performance data relating to the Subscription Service without Sapper’s prior written consent; or (d) reverse engineer, decompile, and or disassemble Subscription Service. Customer must not remove, alter, or obscure in any way at all proprietary marks, trademarks (including common law trademarks), service marks, or other identifying marks of Sapper on or within the Subscription Service or any output generated from or through the Subscription Service. The Subscription Service and all worldwide Intellectual Property Rights therein, are the exclusive property of Sapper. All rights not expressly granted to Customer in this Agreement are reserved exclusively by and to Sapper.
2.3. Customer Professional Support Service. As part of the Subscription Service, Sapper grants Customer with Base Level Support, as identified in the Support Policies, https://sapper.ai/support-policy/, which shall be provided directly by and through the Reseller, if any, or Sapper, if no Reseller is involved in the transaction. Any additional support, such as Preferred Support or Premium Support, as identified in Sapper’s Support Policies will be available to the Customer, if Customer elects same for an additional cost. If Customer chooses to purchase a Preferred or Premium Support Plan, Sapper will directly provide Customer with such support pursuant to the Professional Support Services purchased and set forth in the applicable Order Form(s). Sapper will use commercially reasonable efforts to respond to and resolve all customer support issues that are attributable to the Subscription Service. Additional information on Sapper’s support obligations, including target response times, is set forth in Sapper’s Support Policies.
2.4. Customization. Customer may request Sapper to perform and/or develop unique and customized work (“Customized Work”) as per the specifics provided by the Customer in the applicable Order Form(s). Such requests for additional Professional Services will be subject to additional fees as more fully set forth in the applicable Order form(s). Unless otherwise expressly stated in the applicable Order Form, Customized Work shall be provided on a time and materials (“T&M”) basis at Sapper’s T&M rates specified on the Order Form and all Customized Work will be deemed accepted upon delivery. Any changes to the scope of work under an Order Form shall be made by written change order or amendment to the Order Form signed by an authorized representative of each party prior to implementation of such changes.
3. Customer’s Obligations
3.1. Proper Use. Customer shall use the Subscription Service in accordance with this Agreement and instructions or guidance provided by Sapper. Customer shall not, and shall ensure that its users shall not, use, submit, or enter any data, information or other materials in the course of using the Subscription Service that (i) violate any applicable laws, rules or regulations, (ii) infringe upon or misappropriate any intellectual property or proprietary rights of others, or (iii) violates the privacy rights of others.
3.2. Restrictions. Customer shall not and shall not allow any third party to: (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, or interoperability interfaces of the Subscription Service by any means whatsoever; (ii) remove any product identification, copyright or other notices; (iii) provide, lease, lend, or otherwise use the Subscription Service to or for the benefit of third parties; (iv) reproduce or copy the Subscription Service or any component thereof; (v) modify, adapt, alter, translate or incorporate into or with other software or create a derivative work of any part of the Subscription Service nor any service or product that is similar to or a substitute in whole or in part for the Subscription Service; (vi) disclose information or analysis (including, without limitation, benchmarks) regarding the quality or performance of the Subscription Service; or (vii) resell, sublicense, distribute, or transfer the Subscription Service or any component thereof to any third party (including, without limitation, sharing Customer’s username(s) and password(s) for the Subscription Service with any third party).
3.3. Professional Services; Cooperation. Each Party agrees to cooperate reasonably and in good faith with the other in the performance of the Professional Services and acknowledges that delays may otherwise result. Customer agrees to provide, or provide access to, the following: complete and accurate information and data from its employees and agents; coordination of onsite, online and telephonic meetings; Credentials with sufficient permissions for Sapper’s personnel to install and/or configure the Subscription Service where necessary for all applications being integrated; and other resources as reasonably necessary for satisfactory and timely performance of the Professional Services.
3.4. Re-Engagement Fees. Except where the relevant Order Form provides otherwise, scheduling of Sapper’s purchased Professional Service must be agreed to no later than ten (10) business days prior to the date work is scheduled to begin. If Customer subsequently requests scheduling changes or causes delays under an Order Form to which Sapper has dedicated resources and begun work, then (i) in the case of a T&M or block of hours Order Form, hours may be incurred to restart work, which may involve effort for knowledge/information transfer, project re-planning, and other reasonable restart activities; or (ii) in the case of a fixed fee Order Form, additional fees may apply and will be billed to Customer (a “Re-engagement Fee”, as further described below), and must be paid in full by Customer before Sapper will resume work. The Re-engagement Fee shall be calculated to be 15% of the total estimated project price. Delays caused by Customer that exceed ten (10) business days shall entitle Sapper to terminate the relevant Order Form for cause immediately upon written notice.
Licensor own all Software, Materials, and Documentation and all derivatives thereof (collectively “Protected Materials”), which are protected by applicable U.S. and international patent, copyright, trademark and trade secret laws. Customer must duplicate unaltered copies of all proprietary notices incorporated in or affixed to any Protected Materials. Except as stated in the Agreement, Customer receives no other rights to use any to use any of the Licensor’s marks.
5. Fees; Payments.
5.1. Fees. Subject to the terms and conditions of this Agreement, Customer shall pay Sapper all fees associated with the Subscription Service, including but not limited to, the (a) platform fees, (b)Package fees, (c) Additional volume fees and (d) setup fees, or any other annual or non-annual Subscription Service access, overage fees (collectively, the “Fees”) as set forth on an Order Form.
- Payment Terms. An invoice for the Licensed Software Fees will be issued on the Effective Date of the Order Form and shall be due and payable within thirty (30) days from the date of the issued invoice, payment may be required prior to providing of access to the Licensed Software.
- Licensor shall have the right to immediately suspend and/or terminate Customer’s access to the Licensed Software without notice, if Customer is delinquent on its payment obligations.
- Licensor reserves the right to increase the fees associated with the Licensed Software, but no more than five percent (5%) annually.
- Fees stated in an Order Form are exclusive of all applicable sales, use, value-added, goods and services, consumption, withholding, excise and any other similar taxes or government charges (“Taxes”). Customer shall (i) pay Licensor such applicable Taxes (excluding Licensor’s income taxes) listed on the relevant invoice or (ii) withhold all applicable taxes according to the local rules, both of which may be in addition to the total fees due and listed in the order form.
5.2. Payment Terms. An invoice for the Subscription Service Fees will be issued on the Effective Date of the Order Form and shall be due and payable within thirty (30) days from the date of the issued invoice, payment may be required prior to providing of access to the Subscription Service. Sapper shall have the right to immediately suspend and/or terminate Customer’s access to the Subscription Service without notice, if Customer is delinquent on its payment obligations. Sapper reserves the right to increase the fees associated with the Subscription Service, but no more than five percent (5%) annually.
5.3. Fees For Professional Services. Sapper shall invoice Customer for Professional Services as provided in the applicable Order Form(s). Unless otherwise expressly stated in the applicable Order Form, (i) charges shall be due and payable within fifteen (15) days from the date of the issued invoice; and (ii) Customer shall reimburse Sapper for any reasonable pre-approved travel-related expenses incurred in conjunction with the Professional Services.
5.4. Payments Upon Termination. Upon expiration or termination of this Agreement for any reason, Customer shall pay all earned and unpaid Fees and other amounts due Sapper hereunder, which shall be due and payable within fourteen (14) days following the date of expiration or termination of this Agreement.
6. Terms & Terminations
6.1. Initial Term; Renewal. The initial term of this Agreement shall commence on the date that Customer signs an Order Form. Thereafter, this Agreement and each Order Form governed by this Agreement shall be automatically renewed from year to year. Either Party may submit written notice of its intention not to renew to the other Party at least 30 days prior to the end of the then current term.
6.2. Termination For Cause. Sapper may terminate this Agreement, (a) effective immediately upon written notice to Customer, if Customer breaches any provision in Section 3, 5 or 8, or (b) if Customer breaches any other provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from Sapper. Customer may terminate this Agreement, upon written notice to Sapper, if Sapper breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from Customer.
6.3. Obligations on Termination. Upon termination or expiration of this Agreement, including the Order Form, for any reason, all Subscription Service and Customized Work under this Agreement will immediately cease to exist, and Customer must (i) promptly discontinue all further use of the Subscription Service and Customized Work, and (ii) destroy or return to Sapper all copies of the Subscription Service and Customized Work and provide a written confirmation (“Written Acknowledgement”) signed by an officer of Customer that it has fully complied with this requirement.
6.4. Survival. Termination of this Agreement shall not relieve either Party of its respective obligations to the other hereunder, including all payment obligations, which arose prior to the effective date of termination. Notwithstanding anything herein to the contrary, Sections 4, 6, 7, 8, 9, 10 and 12 shall survive termination of this Agreement.
a) Licensor warrants that for 90 days following the Delivery Date (“Warranty Period”), the Software, as updated and used in accordance with the Documentation, will operate in all material respects in conformity with the functional specifications described in the Document
b) Licensor is not responsible for any claimed breach of any warranty caused by:
- Modifications made to the Licensor Software by anyone other than Licensor
- The combination, operation or use of the Licensor Software with any items that are not permitted in the Documentation
7.1. EXPRESSLY PROVIDED FOR HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICE AND THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. CUSTOMER AGREES THAT ALL RISK PERTAINING TO THE USE OF THE SERVICES IS ASSUMED BY CUSTOMER. SAPPER EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SAPPER DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SUBSCRIPTION SERVICE WILL BE SECURE OR UNINTERRUPTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SAPPER OR THEIR EMPLOYEES OR AGENTS WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER.
7.2. Warranties by Both Parties. Each party warrants that it has full power and authority to enter into and perform this Agreement, and the person entering into this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement.
7.3. Disclaimer. THE EXPRESS WARRANTIES IN THIS SECTION 7 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SUBSCRIPTION SERVICE OR ANY SERVICES PROVIDED BY SAPPER, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE WARRANTIES IN THIS AGREEMENT AND THAT NO WARRANTIES HAVE BEEN MADE.
8.1. Definition. “Confidential Information” means information about the Customer’s or Sapper’s business, products, services or activities that is proprietary and confidential, which shall include, without limitation, all business, financial, technical, marketing and other information marked or designated by the Customer or Sapper as “confidential” or “proprietary;” together with all information which, by the nature of the circumstances surrounding the disclosure, ought in good faith be treated as confidential. Confidential Information shall include, without limitation, the Services and the software component(s) of the Subscription Service, as well as the specific terms, pricing, and fees set forth in this Agreement and the Order Form.
8.2. Duty of Confidentiality. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend. The Disclosing Party will identify all Confidential Information disclosed orally as confidential at the time of disclosure. Regardless of whether so marked or identified, however, any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
8.3. Exceptions. The Receiving Party’s obligations under Section 8.1 will not apply to any Confidential Information that: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was rightfully disclosed to the Receiving Party by a third party; (c) through no fault of the Receiving Party has become generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure, and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any action to contest or limit the scope of such required disclosure.
8.4. Return of Confidential Information. The Receiving Party will either, at its option, return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. The Receiving Party shall provide a signed written acknowledgement (“Written Acknowledgement”) stating that the Receiving Party has appropriately destroyed and permanently erased all electronic copies of all Confidential Information pursuant to this Section.
9. Security and Privacy.
9.1. Data Protection. Under the terms of this agreement, and in the natural processing of Customer Data, where the Customer is processing data using Sapper’s Subscription Service and consents to the storage of its’ Customer Data with Sapper, and taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing the Customer’s data Sapper will secure that data using reasonable technical solutions and according to the Sapper’s Security Policies, as provided at https://sapper.ai/security-overview. The parties agree and intend that Sapper is a “service provider” as defined under California Consumer Privacy Act of 2018 (CCPA) and other relevant data protection laws. With regard to the Customer Data that Sapper may process in providing the service under this Agreement, Sapper will not (i) sell — as defined by the CCPA — any processed Customer Personal Data, (ii) collect, use, maintain or disclose processed Customer Data except as necessary to perform the Services, or retain processed Customer Data beyond the expiration or termination of this agreement except to the extent required by applicable laws and in accordance with this Agreement. Sapper certifies that it understands and will comply with the foregoing restrictions.
9.2. Security Breach. In the event of a Security Breach defined by applicable law as reportable to authorities and/or the Customer, or the owners of personal data the Customer has custody of, Sapper agrees to notify the Customer pursuant to applicable law. For personal data that belongs to residents of the EU economic area that the Customer is the custodian of, as defined under the definitions of Personal Data per the EU General Data Protection Regulation 2016/679 (GDPR) Article 4, a separate Data Protection Agreement (DPA) shall be provided by Sapper and executed between the parties.
10. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR ANY OTHER PERSON OR ENTITY, FOR ANY INDIRECT, INCIDENTAL, COVER, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS OR DATA WHATSOEVER, ARISING FROM OR RELATED TO THIS AGREEMENT OR THE OTHER PARTY’S USE OR RELIANCE UPON THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID AND PAYABLE FOR SUBSCRIPTION SERVICES TO SAPPER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM.
11.1. Indemnification by Customer. Customer agrees to defend, indemnify and hold harmless Sapper and its officers, directors, employees, agents and licensors from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by third parties (including any Customer) resulting from or relating to any breach by Customer of its obligations, duties, or responsibilities under this Agreement. Customer’s obligations under this Section 11.1 are subject to the conditions that Sapper gives Customer prompt written notice of any such claim, allow Customer to control the defense and settlement of the claim (except that Customer may not offer any defense or agree to any settlement that does not unconditionally release the Sapper or that imposes any obligation or liability on the Sapper, without the Sapper prior written consent), and cooperate with Customer, at Customer’s reasonable request and expense, in defending or settling the claim.
11.2. Indemnification by Sapper. Sapper will defend, indemnify, and hold Customer harmless from any third-party infringement claims to the extent that the claim alleges that the Subscription Services infringes on any patent or copyright, or misappropriates any trade secrets as recognized under the Uniform Trade Secret law. Sapper will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer notifying Sapper promptly in writing of such action, giving Sapper sole control of the defense thereof and any related settlement negotiations, and cooperating and, at Sapper’s reasonable request and expense, in assisting with such defense. Notwithstanding the foregoing, Sapper will have no obligation under this Section 11.2 or otherwise with respect to any infringement claim based upon: (i) any unauthorized use, reproduction, or distribution of the Licensed Software by Customer or any of its Customers, (ii) any use of the Subscription Services in combination with other products, equipment, software, or data not supplied by Sapper (including other components of the Customer Products), (iii) any use, reproduction, or distribution of any release of the Subscription Service other than the most current release made available to Customers, or (iv) any modification of the Subscription Service by any person other than Sapper.
12. General Provisions
12.1. Compliance with Laws. Customer acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin. Customer agrees that it will not export or re-export the Subscription Service in any form without the appropriate United States and/or foreign government licenses. Customer shall not, unless authorized by U.S. export license or other government authorizations, directly or indirectly export Subscription Service to countries subject to U.S. embargoes or trade sanctions programs. The Parties further agree that they will not use, distribute, transfer or transmit the products, software or technical information (even if incorporated into other products) except in compliance with export Laws. If requested by either Party, the other Party agrees to sign all necessary export- related documents as may be required to comply with export Laws.
12.2. Assignment. Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Subscription Service) or delegate any of its duties under this Agreement to any third party without Sapper’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void.
12.3. Notices. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by certified or registered mail (postage prepaid and return receipt requested), facsimile, or by electronic mail (e-mail), to the other party at the address, facsimile number, or email address set forth beneath such party’s signature. Notices delivered by courier or certified or registered mail will be effective upon receipt or five (5) business days after being deposited in the mail as required above, whichever occurs sooner. Notices delivered by facsimile or email will be effective upon receipt if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day. Either party may change its address by giving notice of the new address to the other party.
12.4. Taxes. Customer will be responsible for payment of all taxes (other than taxes based on Sapper’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of fees to Sapper under this Agreement or the delivery or Subscription Service to Customer. Customer will make all payments of fees and royalties to Sapper free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees and royalties to Sapper will be Customer’s sole responsibility, and Customer will provide Sapper with official receipts issued by the appropriate taxing authority, or such other evidence as the Sapper may reasonably request, to establish that such taxes have been paid.
12.5. Governing Law and Venue. This Agreement will be governed by the laws of the State of California without regard to conflict of laws principles that would require the application of the laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California or in state court in San Francisco County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
12.6. Remedies. Except as provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that any actual or threatened breach of this Agreement will constitute immediate, irreparable harm to Sapper for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
12.7. Waivers. All waivers must be in writing and signed by both parties. No waiver or forbearance by either Party hereto of any rights hereunder in any particular instance shall act to preclude such Party from exercising those rights in any other instance.
12.8. Relationship. Neither Sapper or Customer is, nor represents itself to be, an agent, employee, partner or joint venturer of the other, nor will Sapper or Customer transact any business on the other’s behalf, nor in any form make promises, representations or warranties that incur any liability for or on behalf of the other party. Customer’s relationship to Sapper is that of an independent contractor, and Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Sapper.
12.9. Feedback. Customer agrees that Sapper may, in its sole discretion, use any feedback, suggestions, and ideas about the Subscription Services or any of its components, in any manner, including in future modifications of the Services and components thereof.
12.10. Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Accordingly, if any particular provision of this Agreement shall be adjudicated to be overly broad, invalid or unenforceable as written, it is the desire and intent of the Parties that the Court revise such provision as it deems necessary to make it consistent with the law and public policy of the jurisdiction and govern law and enforce the provision as so revised.
12.11. Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
12.12. Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the one and same instrument.
12.13. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by any Act of God, a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible. Performance times shall be considered extended for a period of time equivalent to the time lost because of such delay.
12.14. Publicity. Sapper will have the right to publicize the parties’ relationship, by listing Customer as a Sapper licensee, Customer, or the like. Customer hereby grants to Sapper, during the term of this Agreement, a nonexclusive, royalty-free and fully-paid, worldwide license to use Customer’s name, logo, and other marks as is reasonably necessary for Sapper to exercise its rights as set forth above. Sapper agrees to comply with any commercially reasonable trademark usage guidelines provided to Sapper in writing.
12.15. Entire Agreement. This Agreement, together with any Order Forms executed pursuant hereto, constitutes the entire agreement between the Parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, proposals, understandings, and communication, whether written or oral with respect to the subject matter hereof. To the extent that there is a conflict between the terms and conditions of this Agreement and the Order Form, the terms and conditions of the Order Form shall govern and control unless otherwise specified in the Order Form. This Agreement may be amended only by a written document signed by both parties.