SaaS Agreement & Terms of Service

Effective January 2020

This Technicate SaaS Agreement (the “Agreement”) is entered into by and between You and Technicate Solutions Inc., (“Technicate”, “we” or “us”).  “You” means the entity you represent in accepting these terms (the “Terms”) or, if applicable, you individually.  If You are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind such employer or  entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. 

These Terms are effective as of the date you first use or access a SaaS Product, or execute an Order, whichever is earlier (the “Effective Date”). These Terms need not be signed in order to be binding if such use or access has occurred. 

1. What these Terms cover.

1.1. SaaS Products. These Terms govern our SaaS Products, related Support, and Additional Services. These Terms include our Policies (including our Privacy Policy), the Product-Specific Terms, and your Orders.

1.2. Product-Specific Terms. Some of our SaaS Products may be subject to additional terms specific to that product, as set forth in the Product-Specific Terms. By accessing or using a product covered by the Product-Specific Terms, you also agree to the Product-Specific Terms.

2. How SaaS Products are administered.

2.1. Administrators. Through the SaaS Products, you may be able to specify certain End Users as Administrators, who will have important rights and controls over your use of SaaS Products and End User Accounts. This may include making Orders for SaaS Products, creating, de-provisioning, monitoring or modifying End User Accounts, and setting End User usage permissions; and managing access to Your Data by End Users or others. Without limiting Section 2.4 (Responsibility for End Users), which fully applies to Administrators, you are responsible for whom you allow to become Administrators and End Users, and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the SaaS Products for you.

2.2. Consultant as Administrator. If you order SaaS Products through a Consultant, you are responsible for determining whether the Consultant may serve as an Administrator and for any related rights or obligations in your applicable agreement with the Consultant.  As between you and Technicate, you are solely responsible for any access by Consultant to your accounts or your other End User Accounts.

2.3. End User Consent. You will provide all required disclosures to End Users to allow: (i) Administrators to have the access described in these Terms and the Privacy Policy; and (ii) Technicate’s provision of the SaaS Products to Administrators and End Users.

2.4. Responsibility for End Users. You are responsible for understanding and controlling whom you allow to become an End User. You are responsible for compliance with these Terms by all End Users, including for any payment obligations. Please note that you are responsible for the activities of all your End Users, including Orders they may place and how End Users use Your Data, even if those End Users are not from your organization or domain.

2.5. Credentials. You must require that all End Users keep their user IDs and passwords for the SaaS Products strictly confidential and do not share such information with any unauthorized person. User IDs are granted to individuals, named persons and may not be shared. You are responsible for any and all actions taken using End User Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.

3. What’s included in your SaaS subscriptions; what are the restrictions?

3.1. Access to SaaS Products. Subject to these Terms and during the applicable Subscription Term, you may access and use the SaaS Products for your own purpose, as applicable, all in accordance with these Terms, the applicable Order and the Documentation. This includes the right, as part of your authorized use of the SaaS Products, to download and use the client software associated with the SaaS Products. The rights granted to you in this Section 3.1 are non-exclusive, non-assignable, non-sublicensable and non-transferable.

3.2. Support. During the Subscription Term, we will provide Support for the SaaS Products in accordance with the Support Policy and the applicable Order.

3.3. Restrictions. Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of the SaaS Products; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the SaaS Products to a third party unless specifically authorized in writing by Us; (c) interfere with or otherwise circumvent mechanisms in the SaaS Products intended to limit your use; (d) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any SaaS Products, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Us); (e) remove or obscure any proprietary or other notices contained in any SaaS Product; (f) use the SaaS Products for competitive analysis or to build competitive products; (g) publicly disseminate information regarding the performance of the SaaS Products; or (h) encourage or assist any third party to do any of the foregoing.

4. Our security and data privacy policies.

4.1. Security and Certifications. We implement and maintain physical, technical and administrative security measures designed to protect Your Data from unauthorized access, destruction, use, modification, or disclosure. 

4.2. Privacy. We collect certain data and information about you and your End Users in connection with your and your End Users’ use of the SaaS Products and otherwise in connection with these Terms. We collect and use all such data and information in accordance with our Privacy Policy and applicable law, including the CCPA where applicable, which you acknowledge.

4.3. Improving SaaS Products. We are always striving to improve the SaaS Products. In order to do so, we use analytics techniques to better understand how our SaaS Products are being used. For more information on these techniques and the type of data collected, please read our Privacy Policy.

4.4. Subpoenas. Nothing in these Terms prevents us from disclosing Your Data to the extent required by law, including valid subpoenas or court orders, but we will use commercially reasonable efforts to notify you where permitted to do so.

5. Terms that apply to Your Data.

5.1. Using Your Data to provide SaaS Products to You. You retain all right, title and interest in and to Your Data in the form submitted to the SaaS Products. Subject to these Terms, and solely to the extent necessary to provide the SaaS Products to you, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Your Data. Solely to the extent that reformatting Your Data for display in a SaaS Product constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. We may access your accounts, End User Accounts, and your SaaS Products at any time, for any reason consistent with the Terms and purpose of this Agreement.. 

5.2. Your Data Compliance Obligations. You and your use of SaaS Products (including use by your End Users) must comply at all times with these Terms, the Acceptable Use Policy and all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all Your Data to the SaaS Products and to grant the rights granted to us in these Terms and (ii) Your Data and its submission and use as you authorize in these Terms will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Your Data. Other than our express obligations under Section 4 (Our security and data privacy policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the SaaS Products.

5.3. No Prohibited Sensitive Personal Information. You will not submit to the SaaS Products (or use the SaaS Products to collect) any Sensitive Personal Information unless its processing is expressly supported as a feature of the applicable SaaS Product in the applicable Documentation. Notwithstanding any other provision to the contrary, we have no liability under these Terms for Sensitive Personal Information submitted in violation of the foregoing.

5.4. Your Indemnity. You will defend, indemnify and hold harmless us (and our Affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to (i) your breach of this Agreement or any claims or disputes brought by your End Users arising out of their use of SaaS Products; or (ii) information contained in Your Materials that results in any such claims or disputes. This indemnification obligation is subject to you receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense or settlement of such claim and (c) all reasonable necessary cooperation by us at your expense.

5.5. Removals and Suspension. We have no obligation to monitor any content uploaded to the SaaS Products. Nonetheless, if we deem such action necessary based on your violation of these Terms, including Our Policies, or in response to takedown requests, we may (1) remove Your Data from the SaaS Products or (2) suspend your access to the SaaS Products. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the SaaS Product or other users, we may suspend your access or remove Your Data immediately without notice. We shall have no liability to you for removing or deleting Your Data from or suspending your access to any SaaS Products as described in this Section 5.5.

6. Using third-party products with the SaaS Products.

6.1. Third-Party Products. You (including your End Users) may choose to use or procure other third party products or services in connection with the SaaS Products, or implementation, customization, or other services. Your receipt or use of any third party products or services (and the third parties’ use of any of Your Data) is subject to a separate agreement between you and the third party provider. If you enable or use third party products or services with the SaaS Products, we will allow the third party providers to access or use Your Data as required for interoperation of their products and services with the SaaS Products. This may include transmitting, transferring, modifying or deleting Your Data, or storing Your Data on systems belonging to the third party providers or other third parties. Any third party provider’s use of Your Data is subject to the applicable agreement between you and such third party provider. We are not responsible for any access to or use of Your Data by third party providers or their products or services, or for the security or privacy practices of any third party provider or its products or services. You are solely responsible for your decision to permit any third party provider or third party product or service to use Your Data. It is your responsibility to carefully review the agreement between you and the third party provider, as provided by the applicable third party provider. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OR VENDORS, INCLUDING ANY ACTS OR OMISSIONS OCCURRING AS A RESULT OF, OR RELATED TO, ACCESS TO OUR SAAS PRODUCTS BASED ON ACCESS AUTHORIZED BY YOU. 

7. Using Technicate developer assets. 

Access to any of our APIs, SDKs or other Technicate developer assets is subject to the Technicate Developer Terms, which is a separate agreement.

8. Additional Services.

8.1. Additional Services. Subject to these Terms, you may purchase Additional Services that we will provide to you pursuant to the applicable Order. Additional Services may be subject to additional policies and terms as specified by us.

8.2. Our Deliverables. We will retain all right, title and interest in and to Our Deliverables. You may use any of Our Deliverables provided to you only in connection with the SaaS Products, subject to the same usage rights and restrictions as for the SaaS Products. For clarity, Our Deliverables are not considered SaaS Products, and any SaaS Products are not considered to be Our Deliverables.

8.3. Your Materials. You agree to provide us with reasonable access to Your Materials as reasonably necessary for our provision of Additional Services. If you do not provide us with timely access to Your Materials, our performance of Additional Services will be excused until you do so. You retain your rights in Your Materials, subject to our ownership of any SaaS Products, any of Our Deliverables or any of Our Technology underlying Your Materials. We will use Your Materials solely for purposes of performing the Additional Services. You represent and warrant that you have all necessary rights in Your Materials to provide them to us for such purposes.

9. Billing, renewals, and payment.

9.1. Monthly and Annual Plans. Except for No-Charge Products, all SaaS Products are offered on a subscription basis.

9.2. Renewals. Except as otherwise specified in your Order, unless otherwise validly terminated prior to expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term. You will provide any notice of non-renewal through written notice to us via email to accounting _at_ Technicate _dot_ com no less than ninety (90) days prior to the end of the then-current Term. Any notice or request to terminate this Agreement not in conformity with this process shall be void and may render the Agreement subject to automatic renewal.  Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable SaaS Product continuing to be offered and will be charged at the then-current rates.

9.3. Adding Users. You may add users, increase storage limits, or otherwise increase your use of SaaS Products by placing a new Order or modifying an existing Order. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.

9.4. Payment. You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. If a PO number is required in order for an invoice to be paid, then you must provide such PO number to Technicate by emailing the PO number to accounting@Technicate.com. For Additional Services provided at any non-Technicate location, unless otherwise specified in your Order, you will reimburse us for our pre-approved travel, lodging and meal expenses, which we will charge as incurred. All amounts are non-refundable, non-cancelable and non-creditable. 

9.5. Delivery. We will deliver the login instructions for SaaS Products to your account or through other reasonable means no later than when we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your Order has been processed. All deliveries under these Terms will be electronic.

10. If you purchased through a Technicate Consultant. 

If you make any purchases through an authorized partner or Consultant of Technicate (“Consultant”):

(a) Instead of paying us, you will pay the applicable amounts to the Consultant, as agreed between you and the Consultant. We may suspend or terminate your rights to use SaaS Products if we do not receive the corresponding payment from the Consultant.

(b) Your order details (e.g., the SaaS Products you are entitled to use, the number of End Users, the Subscription Term, etc.) will be as stated in the Order placed with us by the Consultant on your behalf, and Consultant is responsible for the accuracy of any such Order as communicated to us.

(c) Consultants are not authorized to modify these Terms or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in these Terms.

(d) The amount paid or payable by the Consultant to us for your use of the applicable SaaS Product under these Terms will be deemed the amount actually paid or payable by you to us under these Terms for purposes of calculating the liability cap in Section 17.2.

11. No contingencies on other products of future functionality. 

You acknowledge that the SaaS Products and Additional Services referenced in an Order are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of SaaS Products and Additional Services are separate and not contingent on each other, even if listed on the same Order). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any SaaS Products beyond the current Subscription Term), or dependent on any oral or written public comments we make regarding future functionality or features.

12. Evaluations, trials, and betas. 

We may offer certain SaaS Products to you at no charge, including free accounts, trial use and Beta Versions as defined below (collectively, “No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted during the Subscription Term we designate (or, if not designated, until terminated in accordance with these Terms). Except as otherwise set forth in this Section 12, the terms and conditions of these Terms governing SaaS Products, including Section 3.3 (Restrictions), fully apply to No-Charge Products. We may modify or terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta SaaS Products, and any pre-release and beta features within generally available SaaS Products, that we make available (collectively, “Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available SaaS Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 12. All information regarding the characteristics, features or performance of any No-Charge Products (including Beta Versions) constitutes our Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support, warranty and indemnity obligations. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, OUR MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS WILL BE $100 USD.

13. IP Rights in the SaaS Products and Feedback. 

SaaS Products are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the SaaS Products). From time to time, you may choose to submit Feedback to us. We may, in connection with any of our products or services, freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.

14. Confidentiality. 

Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party") constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to the SaaS Products will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 14 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 14. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

15. Term and Termination.

15.1. Term. These Terms are effective as of the Effective Date and expire on the date of expiration or termination of all Subscription Terms.

15.2. Termination for Cause. Either party may terminate these Terms (including all related Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

15.3. Termination for Convenience. You may choose to stop using the SaaS Products at any time for any reason upon written notice to us pursuant to the notice obligations set forth in Section 9.2 herein. Upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.

15.4. Effects of Termination. Upon any expiration or termination of these Terms or this Agreement, you must cease using all SaaS Products and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of these Terms (or its applicable Subscription Term), so you should make sure to export Your Data using the functionality of the SaaS Products during the applicable Subscription Term. If you terminate these Terms in accordance with Section 15.2 (Termination for Cause), we will refund you any prepaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. If we terminate these Terms in accordance with Section 15.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.

15.5. Survival. The following provisions will survive any termination or expiration of these Terms: Sections 3.3 (Restrictions), 5.4 (Your Indemnity), 6.1 (Third-Party Products), 9.4 (Payment), 12 (Evaluations, trials, and betas) (disclaimers and use restrictions only), 13 (IP Rights in the SaaS Products and Feedback), 14 (Confidentiality), 15 (Term and Termination), 16.4 (Warranty Disclaimer), 17 (Limitations of Liability), 18 (IP Indemnification) (but solely with respect to claims arising from your use of SaaS Products during the Subscription Term), 20 (Dispute Resolution) and 23 (General Provisions).

16 Warranties and Disclaimer.

16.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms.

16.2. Our Warranties. We warrant, for your benefit only, that we use commercially reasonable efforts to prevent the introduction of viruses, Trojan horses or similar harmful materials into the SaaS Products (but we are not responsible for harmful materials submitted by you or End Users) (the “Performance Warranty”).

16.3. Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of the SaaS Product for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) to No-Charge Products. Our sole liability, and your sole and exclusive remedy for any breach of the Performance Warranty are set forth in this Section 16.

16.4. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 16, ALL SAAS PRODUCTS, SUPPORT AND ADDITIONAL SERVICES ARE PROVIDED “AS IS”, AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE SAAS PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT THE USE OF THE SAAS PRODUCTS NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

17. Limitation of Liability.

17.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. 

17.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

17.3. Excluded Claims. “Excluded Claims” means (1) amounts owed by you under any Orders, (2) either party’s express indemnification obligations in these Terms, or (3) your breach of Section 3.3 (Restrictions).

17.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 19 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.

18. IP Indemnification. 

We will defend you against any claim brought against you by a third party alleging that the SaaS Products, when used as authorized under these Terms, infringe any third-party patent, copyright or trademark, or misappropriates any third-party trade secret enforceable in any jurisdiction that is a signatory to the Berne Convention (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of the SaaS Products is (or is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right for your continued use of the SaaS Product in accordance with these Terms; (ii) substitute a substantially functionally similar SaaS Product; or (iii) terminate your right to continue using the SaaS Product and refund any prepaid amounts for the terminated portion of the Subscription Term. Our indemnification obligations above do not apply: (1) if the total aggregate fees we receive with respect to your subscription to a SaaS Product in the twelve (12) month period immediately preceding the Claim is less than US $50,000; (2) if the SaaS Product is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if the SaaS Product is used in combination with any non-Technicate product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of SaaS Products; (5) to any Claim arising as a result of (y) Your Data or circumstances covered by your indemnification obligations in Section 5.4 (Your Indemnity) or (z) any third-party deliverables or components contained within the SaaS Products or (6) if you settle or make any admissions with respect to a Claim without our prior written consent. THIS SECTION 18 (IP INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SAAS PRODUCT OR OTHER ITEMS WE PROVIDE UNDER THESE TERMS.

19. Publicity Rights. 

We may identify you as a Technicate customer in our promotional materials. We will promptly stop doing so upon your request sent to sales@Technicate.com. 

20. Dispute Resolution. 

20.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach a settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 20.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 20.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdiction.

20.2. Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the State of California, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Sacramento, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Sacramento, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.

20.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 20.1 (Informal Resolution) and 20.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

20.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.

21. Changes to these Terms. 

We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Section 23.1 (Notices) or by posting the modified Terms on our website. In either instance, we will specify the effective date of the modifications within the affected policy. All current versions of Our Policies can be found and accessed by You at https://www.Technicate.com/legal

21.1. No-Charge Products. You must accept the modifications to continue using No-Charge Products. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Products.

21.2. Paid Subscriptions. Except as otherwise indicated herein, modifications to these Terms that have any material or substantive effect on your use or access to the SaaS Products, or in any way modify your payment obligation therefor, will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 9.2 (Renewals).

21.3. Our Policies. We may modify Our Policies to take effect during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.

22. Changes to the SaaS Products. 

You acknowledge that the SaaS Products are on-line, subscription-based products, and that in order to provide improved customer experience we may make changes to the SaaS Products, and we may update the applicable Documentation accordingly. Subject to our obligation to provide SaaS Products and Additional Services under existing Orders, we can discontinue any SaaS Products, any Additional Services, or any portion or feature of any SaaS Products for any reason at any time without liability to you.

23. General Provisions.

23.1. Notices. Any notice under these Terms must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by certified mail to Technicate Solutions Inc., 2999 Gold Canal Dr., Sacramento, CA, USA 95670, Attn: General Counsel or, if provided for herein, to us electronically at accounting _at_ Technicate _dot_ com. Your notices to us will be deemed delivered our confirmed receipt.

23.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

23.3. Assignment. You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.

23.4. Government End Users. Any United States federal, state, or local government customers are subject to the Government Addendum in addition to these Terms.

23.5. Entire Agreement. These Terms are the entire agreement between you and us relating to the SaaS Products and any other subject matter covered by these Terms, and supersedes all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the SaaS Products or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.

23.6. Conflicts. In the event of any conflict between the main body of these Terms and either Our Policies or Product-Specific Terms, Our Policies or Product-Specific Terms (as applicable) will control with respect to their subject matter.

23.7. Waivers; Modifications. No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 21 (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.

23.8. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.

23.9. Independent Contractors. The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.

24. Definitions. 

Certain capitalized terms are defined in this Section 24, and others are defined contextually in these Terms.

“Additional Services” means Subject Matter Expert (SME) services, premier or priority support or other services related to the SaaS Products we provide to you, as identified in an Order. For the avoidance of doubt, Additional Services do not include the standard level of support included in your subscription.

“Administrators” mean the personnel designated by you who administer the SaaS Products to End Users on your behalf.

“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

“Documentation” means our standard published documentation for the SaaS Products.

“End User” means an individual you or an Affiliate permits or invites to use the SaaS Products. For the avoidance of doubt:  (a) individuals invited by your End Users, (b) individuals interacting with a SaaS Product as your customer are also considered End Users.

“End User Account” means an account established by you or an End User to enable the End User to use or access a SaaS Product.

“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the SaaS Products, Support or Additional Services.

“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

“Notification Email Address” means the email address(es) you used to register for a SaaS Product account or otherwise sign up for a SaaS Product. It is your responsibility to keep your email address(es) valid and current so that we are able to send notices, statements, and other information to you.

“Order” means Technicate’s applicable order forms. As applicable, the Order will identify: (i) the SaaS Products, (ii) the number of End Users, Subscription Term, and other scope of use parameters and (iii) (for paid Orders) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment. Orders may also include Additional Services and No-Charge Products.

“Our Deliverables” means any materials, deliverables, modifications, derivative works or developments that we provide in connection with any Additional Services.

“Our Policies” means our Acceptable Use Policy, Privacy Policy, Support Policy, and (unless specified) any other policies or terms referenced in these Terms and can be found at https://www.Technicate.com/legal

“Our Technology” means the SaaS Products (including all No-Charge Products), Our Deliverables, their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.

“PCI DSS” means the Payment Card Industry Data Security Standards.

“PO” means a purchase order.

“Product-Specific Terms” means additional terms that apply to certain SaaS Products.

“SaaS Products” means our SaaS based solutions (currently designated as “SaaS” deployments), including any client software we provide as part of the SaaS Products.

“Sensitive Personal Information” means any (i) patient, medical or other protected health information regulated by HIPAA; (ii) credit, debit or other payment card data subject to PCI DSS; (iii) other personal information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations); (iv) social security numbers, driver’s license numbers or other government ID numbers; or (v) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.

“Subscription Term” means your permitted subscription period for a SaaS Product, as set forth in the applicable Order.

“Support” means support for the SaaS Products, as further described in the Support Policy (to the extent applicable). Your Support level will be specified in the applicable Order.

“Your Data” means any data, content, code, video, images or other materials of any type that you (including any of your End Users) submit to SaaS Products. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the SaaS Products.

“Your Materials” means your materials, systems, personnel or other resources.