Meet with a FounderThis Software-as-a-Service Agreement (together with the Order Form, as defined below), any exhibits hereto or thereto, and any policies and documents referenced herein (collectively, this “Agreement”) is made and entered into as of [________________] (the “Effective Date”), by and between Doowii, Inc., a Delaware corporation, with a business address located at 1550 Wewatta St, 2nd Floor, Denver, CO 80202 (“Doowii”) and [________________________] located at [____________________] (“Subscriber”). Doowii and Subscriber are referred to herein individually as a “Party” and collectively as the “Parties”.
Doowii’s proprietary generative-AI data platform allows K-12 and higher education educators to aggregate educational data from a variety of sources to generate reports and insights (the “Platform”). Subscriber desires to use the Platform and Doowii agrees to make the Platform available to Subscriber as a software-as-a-service offering as specified in the order form attached hereto as Exhibit A or any subsequent order forms entered into by the Parties from time to time pursuant to this Agreement (the “Order Form”). In consideration of the mutual promises contained herein, the Parties hereby agree as follows:
1. DEFINITIONS.
Capitalized terms have the meanings set forth in this section, or in the section where they are first used.
1.1. “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an Authorized User’s identity and authorization to access and use the SaaS Solution.
1.2. “Authorized User” means any individual who is an employee or contractor of Subscriber and is authorized by Subscriber to access and use the Services. The total number of Authorized Users will not exceed the number set forth in the Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
1.3. “Confidential Information” means all proprietary or confidential information relating to a Disclosing Party that is disclosed or otherwise made available to the Receiving Party under this Agreement. Confidential Information does not include any Usage Data that has been aggregated and anonymized pursuant to Section 6.2(b), or any other information that the Receiving Party can establish: (a) was known to the Receiving Party prior to receiving the same from the Disclosing Party, free of any restrictions; (b) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; (c) is lawfully acquired by the Receiving Party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Receiving Party. Subscriber Data constitutes the Confidential Information of Subscriber.
1.4. “Documentation” means the then-current materials regarding the SaaS Solution provided or made available to Subscriber which describe the functionality, components, features, or requirements of the SaaS Solution.
1.5. “Doowii IP” means the SaaS Solution (including its interface, tools, Knowledge Base, software, and other underlying technology), Documentation, Systems, any updates, modifications, and derivative works of any of the foregoing, and all related IP Rights.
1.6. “IP Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.7. “Knowledge Base” means Doowii’s proprietary, algorithm-based data structure that underlies the SaaS Solution.
1.8. “Malicious Code” means malware, viruses, time bombs, trojan horses, worms, trap doors, ransomware, adware, or spyware or other malicious computer code, code, files, scripts, agents or programs.
1.9. “Process” means to take any action or perform any operation or set of operations that the SaaS Solution is capable of taking or performing on any data, content, or information, including to collect, receive, input, upload, reproduce, organize, compile, combine, adapt, alter, translate, or make other derivative works, or otherwise provide or make available. "Processing" and "Processed" have correlative meanings.
1.10. "Reports” means the analyses and reports produced by the SaaS Solution for Subscriber and Authorized Users utilizing Subscriber Data.
1.11. “Services” means, collectively, the SaaS Solution and Support Services.
1.12. “Subscriber Data” means any data, content and information that is collected, submitted, or otherwise received, directly or indirectly, from Subscriber or an Authorized Users by or through the SaaS Solution or that incorporates or is derived from the Processing of such data, content, and information by or through the SaaS Solution.
1.13. “SaaS Solution” means the Platform provided as a software-as-a-service offering in a hosted environment.
1.14. “Subscription Term” means the period of time specified in the Order Form during which Subscriber has the right to access and use the SaaS Solution.
1.15. “Support Services” means any implementation, training, support and/or maintenance for the SaaS Solution provided by Doowii.
1.16. “Systems” means the information technology infrastructure used by or on behalf of Doowii in providing the SaaS Solution and performing the Support Services, including all computers, software, hardware, and networks, whether operated directly by Doowii or on its behalf through third-party service providers.
1.17. “Usage Data” means query logs, metadata and other data and information related to the operation and support of the SaaS Solution and/or Subscriber’s and Authorized Users’ use of the Services.
2. SERVICES.
2.1. Provision. During the Subscription Term and subject to Subscriber’s payment of the Fees, Doowii will (a) make the SaaS Solution available to Subscriber and Authorized Users on a subscription basis in accordance with the terms and conditions of this Agreement, the applicable Order Form, and Documentation; and, if purchased, (b) provide Support Services to Subscriber as specified in the applicable Order Form. Upon Subscriber’s payment of any initial or upfront Fees as specified in the Order Form, Doowii will provide Subscriber the necessary Access Credentials and network links or connections to allow Subscriber to access the SaaS Solution.
2.2. Restrictions. Subscriber shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (a) access or use the SaaS Solution or Documentation, except as expressly permitted by this Agreement, the Order Form, and the Documentation; (b) copy, reproduce, distribute, or publicly display or perform the SaaS Solution or Documentation; (c) modify, adapt, alter, translate or create derivate works based on the SaaS Solution or Documentation; (d) sell, license, sublicense, lease, rent, loan, lend, distribute, assign, transfer or otherwise make available or allow the use of the SaaS Solution or Documentation for the benefit of any third party, including on or in connection with any time-sharing, service bureau, or other technology or service; (e) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the SaaS Solution; (f) reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to the source code (or the underlying ideas, algorithms, structure or organization) from the SaaS Solution or any component thereof; (g) remove or obscure any proprietary notices or labels from the SaaS Solution or Documentation; (h) access or use the SaaS Solution in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (i) access or use the SaaS Solution or Documentation for purposes of competitive analysis, the development, provision, or use of a competing service or product or any other purpose that is to the Doowii’s detriment or commercial disadvantage.
2.3. Pilot Program. Doowii may make the SaaS Solution or certain features, functionality, updates or upgrades available to Subscriber and its Authorized Users on a trial basis for evaluation purposes only (“Pilot Solution”) at no charge for the time period specified in an Order Form (“Evaluation Period”). Subscriber may access and use the Pilot Solution solely for its internal evaluation and in accordance with terms set forth herein and in the Order Form. The Pilot Solution and any Support Services provided by Doowii during the Evaluation Period are provided “AS IS” without warranties of any kind, and Doowii shall have no liability to Subscriber under this Agreement or otherwise in connection therewith or Subscriber’s or any Authorized User’s access to or use thereof.
2.4. Suspension. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Doowii reserves the right to immediately suspend the provision of the Services and/or Subscriber and its Authorized Users’ access to and use of the SaaS Solution: (a) if Subscriber is thirty (30) days or more overdue on a payment of Fees; (b) if Doowii deems such suspension necessary as a result of Subscriber or its Authorized User’s breach of Section 2; (c) if Doowii reasonably determines suspension is necessary to protect the security, integrity or availability of the Services or to avoid material harm to Doowii, the Services, or its other customers, including if the SaaS Solution is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Doowii’s control, or (d) as required by law or at the request of governmental entities.
2.5. Changes. Doowii reserves the right, in its sole discretion, to update and make any changes to the SaaS Solution and Doowii IP that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of services to Doowii’s customers; (ii) the competitive strength of or market for Doowii’s products and services; or (iii) the cost, efficiency or performance of the Services; or (b) to comply with applicable law, provided, however, that any such changes will not materially degrade Subscriber’s use of the SaaS Solution during the Subscription Term.
2.6. Compliance with Laws. Doowii will provide the Services in accordance with its obligations under laws and regulations applicable to Doowii’s provision of the Services to its customers generally, without regard to Subscriber’s particular use of the SaaS Solution and subject to Subscriber’s use in accordance with this Agreement.
3. OWNERSHIP/IP RIGHTS.
3.1. Doowii IP. Doowii owns all right, title and interest in and to all Doowii IP. Subject to Subscriber’s and its Authorized Users limited right to use the SaaS Solution on a subscription basis as specified herein, no rights are granted to Subscriber, any Authorized User, or any third party with respect to any Doowii IP, and this Agreement shall not be construed as granting any such rights, whether by implication, waiver, estoppel, or otherwise.
3.2. Subscriber Data. As between the Parties, Subscriber owns and retains all right, title, and interest in and to the Subscriber Data. Subscriber hereby grants Doowii a non-exclusive, worldwide, royalty-free, fully-paid, sublicensable (to third-party service providers) and non-transferable (except as provided in Section 13) license to Process Subscriber Data as required to provide the SaaS Solution to Subscriber and its Authorized Users.
3.3. Reports. Subscriber is the exclusive owner of the content of Reports upon creation, while the Report template, Knowledge Base used to create the Report, and related IP Rights remain the sole and exclusive property of Doowii.
3.4. Open Source Software. The SaaS Solution includes or is provided with third party open source libraries, components, utilities and other open source software (“Open Source Software”) that are subject to third party license terms and conditions (“Open Source License”). The Open Source Software does not constitute Doowii IP, and Doowii makes no warranty or indemnity hereunder with respect to any Open Source Software.
3.5. Feedback. Subscriber hereby grants to Doowii an irrevocable, perpetual, royalty-free, fully paid-up, worldwide, transferable, sublicensable, license to freely use, distribute, disclose, make and incorporate into Doowii’s products and services any suggestions, ideas, enhancement requests, recommendations, improvements, corrections or other feedback communicated or provided by Subscriber or any Authorized User relating in any way to the Services, Doowii IP, or any component, feature, or functionality thereof (“Feedback”). All Feedback is provided “AS IS” and without warranties of any kind.
4. PAYMENT TERMS.
4.1. Fees. Subscriber shall pay Doowii the fees set forth in the Order Form (the “Fees”). Unless otherwise stated in the Order Form, Doowii shall invoice Subscriber for the Fees on the schedule set forth on the Order Form, which Subscriber will pay within thirty (30) days of its receipt of invoice (“Due Date”). The Fees are non-cancelable and all payments are non-refundable except as otherwise expressly set forth herein. Subscriber shall pay interest on any undisputed amounts not paid by the Due Date at the rate of 1 ½% per month or the maximum permitted by law, whichever is less, plus all costs and expenses of collection incurred by Doowii.
4.2. Taxes. The Fees do not include, and Subscriber is solely responsible for, all sales, use, excise, value added, customs fees, or other taxes or governmental assessments of any kind, relating to Subscriber’s purchases hereunder (“Taxes”), except for any taxes based on Doowii’s income. If Doowii has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this Section, Doowii will invoice Subscriber, as a separately itemized item, and Subscriber will pay such in accordance with the payment terms set forth in Section 4.1, unless Subscriber provides Doowii with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. SUBSCRIBER RESPONSIBILITIES.
5.1. Subscriber Responsibilities. Subscriber acknowledges and agrees that it is solely responsible for the following: (a) obtaining any consents and notices required to permit Subscriber and its Authorized Users; use and receipt of the SaaS Solution, including Subscriber Data; (b) establishing and maintaining, at its own expense, all equipment and telecommunications services necessary for it and its Authorized Users to access and use the SaaS Solution; and (c) for the accuracy, content, legality, quality, integrity, reliability and appropriateness of all Subscriber Data; Doowii is not obligated to back up any Subscriber Data, and Doowii has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Subscriber Data.
5.2. Authorized Users. Subscriber is responsible for its Authorized Users’ access to and use of the SaaS Solution and compliance with this Agreement, the Documentation, and Order Form. Subscriber and its Authorized Users must keep all Access Credentials confidential and secure and all times; Subscriber is liable for use of the SaaS Solution by anyone using Subscriber’s Access Credentials. Access Credentials cannot be shared or used by more than one Authorized User. Subscriber will promptly notify Doowii in writing if Subscriber becomes aware of any unauthorized access to or use of its Access Credentials or the SaaS Solution.
6. PRIVACY/DATA SECURITY.
6.1. Data Security. Doowii will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Subscriber Data to industry best practices. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Subscriber Data (other than by Subscriber and Authorized Users.)
6.2. Usage Data. Doowii may collect and use Usage Data to develop, improve, support, and operate its products and services. Doowii will not may not share any Usage Data that includes Subscriber’s Confidential Information with a third party except (a) in accordance with Section 9 (Confidential Information), or (b) to the extent the Usage Data is aggregated and anonymized such that it does not enable, or reasonably enable, identification of an individual person or of Subscriber, which aggregated and anonymized Usage Data constitutes Doowii IP.
7. WARRANTIES AND DISCLAIMERS.
7.1. Doowii. Doowii represents and warrants to Subscriber that (a) the SaaS Solution will perform materially in accordance with the Documentation; and if purchased, (b) it will perform the Support Services in a professional and workmanlike manner and substantially in accordance with the specifications in the applicable Order Form. Doowii warrants that it will implement and use commercially reasonable advanced threat detection designed to monitor against Malicious Code being introduced into or affecting the SaaS Solution or Systems.
7.2. Subscriber. Subscriber represents and warrants that (a) its and its Authorized User’s use of the SaaS Solution and Subscriber Data will comply with laws and regulations applicable to Subscriber and its use of the SaaS Solution; and (b) Subscriber Data and Doowii’s Processing thereof in accordance with this Agreement shall not (i) infringe or misappropriate any IP Rights; (ii) be deceptive, libelous, obscene, pornographic or unlawful; (iii) contain any Malicious Code; or (iv) violate any privacy or other right of any person. Subscriber warrants that it has and will have the necessary rights and consents in and relating to Subscriber Data to grant Doowii the rights set forth in Section 3.2.
7.3. Disclaimer. THE LIMITED WARRANTIES SET FORTH IN SECTION 7.1 IS MADE FOR THE BENEFIT OF SUBSCRIBER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 AND OTHERWISE IN THIS AGREEMENT, THE SERVICES, DOCUMENTATION, AND DOOWII IP ARE PROVIDED “AS IS,” AND DOOWII MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. DOOWII DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
8. LIMITATION OF LIABILITY.
EXCLUDING LIABILITY ARISING FROM (A) EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN IN RESPECT OF THIRD-PARTY CLAIMS, (B) SUBSCRIBER’S INFRINGEMENT, VIOLATION OR MISAPPROPRIATION OF ANY DOOWII IP, AND (C) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER PARTY, (I) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS PERFORMANCE HEREUNDER, AND (II) IN NO EVENT SHALL EITHER PARTY’S TOTAL, CUMULATIVE LIABILITY TO THE OTHER AS A RESULT OF ANY CLAIM ARISING UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT OF FEES PAID BY SUBSCRIBER IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER.
9. CONFIDENTIALITY.
9.1. Obligations. Each Party (“Disclosing Party”) may provide the other Party (“Receiving Party”) with Confidential Information. The Receiving Party agrees that it will not directly or indirectly, use, disclose, or otherwise make available to any third party any Confidential Information of the Disclosing Party, except as expressly permitted herein. The Receiving Party will limit access to the Disclosing Party’s Confidential Information to it Authorized Users (with respect to Subscriber as Receiving Party) or to those employees and contractors who have a need to know such Confidential Information for purposes consistent with this Agreement, and its advisors and counsel, in each case who been advised of the confidential nature of such information and who have either (a) signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein, or (b) agreed in writing with the Receiving Party to protect and keep confidential all confidential information to which they have access in the scope of their employment or engagement, as applicable. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.
9.2. Return of Confidential Information. Upon the expiration or termination of this Agreement or written request by the Disclosing Party, the Receiving Party shall (a) return or to destroy any Confidential Information provided by the Disclosing Party (and all copies or summaries thereof); (b) confirm its compliance therewith in writing by an authorized representative. The Receiving Party may, however, retain the Disclosing Party’s Confidential Information in electronic form if (i) legally required, (ii) archived in Receiving Party’s standard computer backups, or (iii) there is another legitimate business need (e.g., usage/billing records, support and security records, or audit materials); provided that, when no longer required, the Receiving Party must delete such electronic information in compliance with its applicable document retention policies. In any case, the obligations in this Section 9 shall apply and survive for as long as the Receiving Party continues to have any of the Disclosing Party’s Confidential Information.
9.3. Compelled Disclosures. This Agreement shall not restrict any disclosure of Confidential Information pursuant to any order, subpoena, regulation, or process of law; provided, that the Receiving Party shall give prior, written notice to the Disclosing Party (to the extent it is legally permitted) so that the Disclosing Party may seek an appropriate protective order or other remedy, and the Receiving Party shall cooperate with the Disclosing Party to obtain such protective order. To the fullest extent permitted by law, the Receiving Party will continue to protect as confidential and proprietary all information disclosed pursuant to this Section 9.3.
9.4. Survival. The obligations of confidentiality set forth in this Section 9 survive the expiration or any termination of this Agreement as follows: (a) with respect to Confidential Information that constitutes a trade secret, for so long as such information is deemed a trade secret under applicable law; and (b) with respect to all other Confidential Information, the shorter period of five (5) years after the expiration or any termination of this Agreement or until such information no longer qualifies as confidential hereunder.
10. INDEMNIFICATION
10.1. By Doowii. Doowii shall defend Subscriber against any claim, demand, suit, or proceeding made or brought against Subscriber by a third party that Subscriber’s use of the SaaS Solution as permitted hereunder infringes any copyright, U.S. patent or other IP Right of such third party, and Doowii shall pay and indemnify Subscriber from and against any losses, damages, costs, liabilities, and expenses (including, but not limited to, reasonable attorneys’ fees and court costs) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by Doowii. If Subscriber’s use of the SaaS Solution becomes, or in Doowii’s opinion is likely to become, the subject of a claim of infringement, Doowii may, at its option and expense: (a) procure for Subscriber the right to continue using the SaaS Solution; (b) replace the SaaS Solution with non-infringing software or services which do not materially impair the functionality of the SaaS Solution; (c) modify the SaaS Solution so that it is non-infringing without loss of material functionality; or (d) terminate this Agreement and the applicable Order Form and refund, on a prorated basis, the Fees paid by Subscriber to Doowii for the remainder of the applicable Subscription Term, and upon such termination, Subscriber will immediately cease all access and use of the SaaS Solution and Documentation. Notwithstanding the foregoing, Doowii shall have no obligation under this Section 1o.1 or otherwise with respect to any third-party claim based upon (i) any use of the SaaS Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the SaaS Solution in combination with other products, equipment, software, or data not supplied or approved by Doowii, which but for such combination the infringement would not have occurred; (iii) any unauthorized modification of the SaaS Solution by any person other than Doowii or its authorized agents; or (iv) Subscriber Data. This Section 10.1 states the sole and exclusive remedy of Subscriber and the entire liability of Doowii and any of its officers, directors, employees, shareholders, contractors or representatives, with respect to any claim of infringement or misappropriation of IP Rights.
10.2. By Subscriber. Subscriber shall defend Doowii against any claim, demand, suit, or proceeding made or brought against Doowii by a third party arising out of (a) Subscriber Data or Subscriber’s or any Authorized User’s use of Subscriber Data with the SaaS Solution; or (b) Subscriber’s breach any of its representations, warranties, covenants, or obligations under this Agreement, and Subscriber shall pay and indemnify Doowii from and against any losses, damages, costs, liabilities, and expenses (including, but not limited to, reasonable attorneys’ fees and costs costs) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by Subscriber. The foregoing indemnification obligation of Subscriber will not apply to the extent the applicable claim is attributable to Doowii’s unauthorized use of Subscriber Data.
10.3. Procedure. Each Party shall promptly notify the other Party in writing of any claim, demand, suit or proceeding for which such Party believes it is entitled to be indemnified pursuant to Section 11.1 or 11.2, as the case may be (the “Indemnity Claim”). The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall have sole control of the defense or settlement of the Indemnity Claim at its sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Indemnity Claim, that would bind the Indemnitee to any obligation (other than payment covered by the Indemnitor or ceasing to use infringing materials) or require any admission of fault by the Indemnitee, without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of an Indemnity Claim, the Indemnitee shall have the right, but no obligation, to defend against such Indemnity Claim, including settlement thereof after giving written notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its obligations under this Section 10, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
11. TERM AND TERMINATION.
11.1. Term. This Agreement commences on the Effective Date and shall continue until terminated in accordance with Section 11.2 or as otherwise permitted herein or by written agreement of the Parties.
11.2. Termination. Either Party may terminate an Order Form and/or this Agreement immediately upon written notice to the other Party if the other Party materially breaches such Order Form and/or this Agreement and fails to cure such breach, if curable, within (30) days after its receipt of written notice of such breach. If there are no outstanding Order Forms, upon thirty (30) days written notice to the other Party, either Party may terminate this Agreement as of the date specified in such notice of termination.
11.3. Effect of Termination. Immediately upon the expiration or any termination of this Agreement, Doowii shall cease to make available and Subscriber shall cease to access and use the SaaS Solution. Termination shall not relieve Subscriber’s obligation to pay all Fees for the period before the effective date of termination. The following Sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive, will survive the expiration or termination of this Agreement: Sections 1, 3.3, 3.5, 4, 6.2, 7.3, 8, 9, 10, 11.3, and 12-15.
12. GOVERNING LAW AND VENUE.
This Agreement and any claim, controversy, action, or proceeding arising out of or relating to this Agreement will be governed and interpreted by and under the laws of the State of Delaware, without reference to conflicts of laws principles. Both Parties expressly agree that any action relating The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13. ASSIGNMENT.
Subscriber shall not assign, delegate, or otherwise transfer this Agreement or any rights or obligations herein under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of Doowii. Any attempted assignment in contravention of this provision will be null and void and of no force or effect. Doowii may assign this Agreement without Subscriber’s consent, to an affiliate or in connection with a merger, consolidation, reorganization, acquisition, or other transfer of all or substantially all of its assets with respect to the SaaS Solution or voting securities to a successor. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
14. EQUITABLE RELIEF.
Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 2.2, 3.2, or 9 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
15. MISCELLANEOUS.
The Parties are independent contractors and nothing in this Agreement shall be deemed to create the relationship of partners, joint venturers, employer-employee, or other similar relationship between the parties. Neither Party is, or will hold itself out to be, an agent of the other Party. Neither Party is authorized to enter into any contractual commitment on behalf of the other Party. In the event of a conflict between the terms in the Order Form and this Agreement, the terms contained in the Order Form shall control. In the event any provision of this Agreement is held by a court of law or other governmental agency to be void or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions shall remain in full force and effect. Neither Party shall be deemed to be in breach of this Agreement for any failure or delay in performance (other than payment of Fees due hereunder) caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strikes, failure of suppliers, fires, floods or earthquakes. The use of the SaaS Solution is subject to U.S. export control laws and may be subject to similar regulations in other countries, and Subscriber agrees to comply with all such laws. Any notice given under this Agreement shall be in writing and shall be sent via overnight mail by a nationally recognized express delivery service addressed to the address and the signatory set forth below. There are no third-party beneficiaries to this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed an original and both of which shall be taken together and deemed one instrument. This Agreement, together with the Order Form, any exhibits hereto or thereto, the Documentation, and any policies and documents incorporated herein by reference, contains the entire agreement of the Parties and supersedes any prior or present understanding or communications regarding its subject matter, and may only be amended in a writing signed by both Parties.
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