Master SaaS Agreement
This Master SAAS Agreement (the “Agreement”) is by and between ArmorBlox, Inc., a Delaware corporation with its principal place of business at 100 S. Murphy Ave STE 200 Sunnyvale, CA 94086 (“Armorblox”), and the company subscribing to the Services (as defined below) through Google Marketplace or such other similar marketplace (“Customer”) (each, a “Party,” and together, the “Parties”).
BY SUBSCRIBING TO THE SERVICES THROUGH A MARKETPLACE, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT. CUSTOMER IS ADVISED THAT NO ARMORBLOX REPRESENTATIVE OR RESELLER HAS AUTHORITY TO BIND ARMORBLOX TO REPRESENTATIONS, WARRANTIES, TERMS OR CONDITIONS THAT ARE NOT EXPRESSLY STATED IN THIS AGREEMENT.
- Definitions. Capitalized terms used in this Agreement shall be defined as set forth below or otherwise in the context in which they are used.
- “Applicable Laws” means all applicable laws, statutes, ordinances, regulations and other types of government directives.
- “Armorblox Platform” means Armorblox’s proprietary software and technology provided or made available by Armorblox to Customer under this Agreement as identified in the applicable Order Form, including any updates, patches, bug fixes, or improvements made generally available by Armorblox from time to time.
- “Customer Data” means all electronic information provided by or on behalf of Customer to Armorblox for use in connection with Armorblox’s provision of the Services to Customer. Customer Data does not include Analytics.
- “Documentation” means Armorblox’s release notes or other similar instructions supplied or made available online by Armorblox and as revised from time to time.
- “Installed Software” means software provided by Armorblox to be installed by Customer solely for use with other Armorblox Services.
- “Order Form” shall mean Armorblox’s standard order form substantially in the form attached hereto, or if Customer is purchasing through a marketplace, such marketplace’s applicable ordering document, solely with respect to the fees and amount and product ordered.
- “Services” means the services made available by Armorblox to Customer under this Agreement including the Armorblox Platform, Installed Software, and the Support.
- “Users” includes both the “Users” as defined on an applicable Order Form and those individual natural persons who are Customer employees, agents, or contractors and who Customer authorizes to use the Services as administrators of Customer’s implementation of the Services.
- Use of the Services; Restrictions.
- Authorized Use. Subject to the terms and conditions of this Agreement, Armorblox grants Customer and its Users a limited, nonexclusive, nontransferable (i) right during the Term to access and use the Services, and (ii) if applicable, license to install and use the Installed Software, in each case, as set forth in the applicable Order Form and solely for Customer's internal business purposes. Customer is responsible for all use of the Services by its Users and agrees that it will not provide or permit access to the Armorblox Platform to anyone other than Users who require such access for the purpose of performing their assigned work for Customer. Customer agrees and acknowledges that its use of the Services may be subject to certain volume and other limits and restrictions as specified herein and on the applicable Order Form and that exceeding such usage limits shall subject Customer to additional charges and fees as stated in the Agreement. Customer represents and warrants to Armorblox that Customer has the right, including all consents required by Applicable Laws, to provide or make available the Customer Data provided to Armorblox in connection with the use of the Services.
- Beta and Evaluation Services. Services provided by Armorblox to Customer as part of a trial or evaluation and beta functionality, shall not be subject to any representations, warranties, or indemnification obligations, shall not include Support or be subject to any service level agreements or obligations, and shall be terminable by either Party at any time for any or no reason upon notice to the other Party. Notwithstanding anything to the contrary herein, Armorblox’s entire liability with respect to trial, evaluation and beta Services, whether based upon contract, warranty, tort (including negligence), product liability or otherwise, even if advised in advance or aware of the possibility of any such loss or damage, shall be limited to $500.
- Restrictions. Customer shall not, and shall not allow its Users or others to: (i) copy, reverse engineer, modify, decompile or attempt to derive the source code for any aspect of the Services or any data related thereto or attempt to or do anything that could interfere with their functionality; (ii) resell, rent, distribute, sublicense or share the Services with or for the benefit of any third party or for any purpose other than its own use other than as expressly permitted in this Agreement; (iii) attempt to probe, scan, penetrate, breach or test the vulnerability of the Services or disable or circumvent any security or authentication measures; (iv) access the Services for the purpose of building a competitive product or service; or (v) use the Armorblox Platform or Services in violation of this Agreement, any Applicable Laws or the rights of any third parties.
- Proprietary Rights. Armorblox may use Customer Data in order to improve and provide the Services. This includes the right for Armorblox to retain anonymous, aggregated data and information about Customer’s use of the Services (“Analytics”) that it may use for its business purposes; provided that such Analytics do not identify Customer, any of its Users or any third party entities or individuals. Analytics are not Customer Confidential Information. As between the parties, Customer owns all right, title and interest (including all intellectual property rights) in and to Customer Data. As between the parties, Armorblox owns all right, title and interest (including all intellectual property rights) in and to the the Services, including the Armorblox Platform, the Analytics, and improvements, modifications, enhancements and all derivative works of or included with the Services, including the general know-how and machine learning developed over time. Further, Armorblox owns all suggestions, requests, edits, corrections or other feedback relating to the Services or other Armorblox materials (“Feedback”) and may use all Feedback for any purpose, perpetually, without any obligations, monetary or other compensation owed, or restrictions. For clarity, Feedback does not include Customer Confidential Information.
- Service Level Agreement and Support. Support information is available at https://www.armorblox.com/support/ (the “Support”). Armorblox’s service level agreement is set forth in Exhibit A.
- Payments. Customer agrees to pay amounts invoiced by Armorblox under this Agreement as specified in the applicable Order Form(s) in U.S. dollars (“Fees”). Order Forms are non-cancellable and Fees are nonrefundable. If any authority imposes a sales tax, VAT, similar levy (other than taxes based on Armorblox’s income) on the provision of products or services under this Agreement as ordered by Customer, Customer agrees to pay, or to promptly reimburse Armorblox for all such amounts that Armorblox is required to pay or collect. Payment from Customer is due thirty (30) days after Customer’s receipt of each invoice. Customer may choose to subscribe to the Services through an authorized reseller of Armorblox’s Services, in which event, all Fees shall be paid to the applicable Reseller by Customer and all refunds, service credits and similar amounts that may payable shall be paid to the applicable reseller.
- Definition. “Confidential Information” means: (i) any non-public technical or business information of a Party, including without limitation any information relating to a Party’s techniques, algorithms, software, know-how, current and future products and services, research, engineering, vulnerability rules, designs, financial information, procurement requirements, manufacturing, employee lists, customer lists, business forecasts, marketing plans and information whether written, oral or provided by any other means; (ii) any other information of a Party that is disclosed in writing and is conspicuously designated as “Confidential” at the time of disclosure or that is disclosed orally and is identified as “Confidential” at the time of disclosure; (iii) any information which a person exercising reasonable business judgment would deem confidential or proprietary; and (iv) the specific terms and conditions of this Agreement.
- Exclusions. Confidential Information shall not include information which: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving Party; (ii) the receiving Party can demonstrate by written evidence was rightfully in the receiving Party’s possession at the time of disclosure, without an obligation of confidentiality; (iii) is independently developed by the receiving Party without use of or access to the disclosing Party’s Confidential Information or otherwise in breach of this Agreement; or (iv) the receiving Party rightfully obtains from a third party not under a duty of confidentiality and without restriction on use or disclosure
- Compelled Disclosure. Nothing in this Agreement will be deemed to restrict a Party from disclosing the other’s Confidential Information if required by any Applicable Laws, court order or other legal process. The receiving Party shall, promptly provide written notice of such disclosure request to the disclosing Party.
- Obligations. Each Party shall, during the Term and for three (3) years thereafter, (i) maintain in confidence all Confidential Information of the disclosing Party and will not use such Confidential Information except as expressly permitted herein; (ii) take all reasonable measures to maintain the confidentiality of the other Party’s Confidential Information, but not less than the measures it uses to protect its own Confidential Information; (iii) limit the disclosure of such Confidential Information to those of its employees, agents, and contractors with a bona fide need to access such Confidential Information in order to exercise its rights and obligations under this Agreement; provided that all such employees, agents, and contractors are bound by nondisclosure obligations at least as protective as those set forth herein; and (iv) return to the disclosing Party or destroy, with such destruction certified in writing by an officer of receiving Party, all Confidential Information of the other Party upon written request of disclosing Party.
- Injunctive Relief. Notwithstanding anything to the contrary, each Party shall be entitled to seek equitable relief to enforce its intellectual property rights and rights in its Confidential Information.
Data Protection. Armorblox will use commercially reasonable efforts to maintain administrative, physical and technical safeguards consistent with applicable industry standards designed to protect the security, confidentiality and integrity of Customer Data. Customer shall not knowingly utilize the Services in a way that is intended to distribute PHI as it is defined in the Health Insurance Portability and Accountability Act to Armorblox without entering into a Business Associate Agreement with Armorblox. Any data processing and protection agreement (“Data Protection Agreement”) entered into by the parties in connection with the data provided in connection with the Services is hereby incorporated into this Agreement and all terms of this Agreement, including any limitations of liability herein, shall fully apply to such Data Protection Agreement. 6. Limited Warranty and Disclaimer.
- Warranty. Armorblox warrants that the Armorblox Platform will, under normal and authorized use in full compliance with this Agreement, conform in all material respects to the technical specifications described in its Documentation.
- Disclaimer. THE FOREGOING EXPRESS WARRANTIES REPLACE AND ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS BY THE PARTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ARMORBLOX MAKES NO WARRANTY THAT THE ARMORBLOX PLATFORM OR SERVICES WILL OPERATE ERROR-FREE, BE FREE OF SECURITY DEFECTS OR OMISSIONS, OR OPERATE IN AN UNINTERRUPTED MANNER.
- Exclusive Remedy. Armorblox’s sole obligation and liability, and Customer’s sole and exclusive remedy, under the warranties set forth in this Section 6 (Limited Warranty and Disclaimer”) shall be for Armorblox to at its sole option either (i) use commercially reasonable efforts to remedy the problem or correct any errors in the Armorblox Platform or Services, or (ii) refund the applicable Fees paid for the period the Services did not comply provided that in each case Armorblox is notified in writing of all warranty claims during Term.
- Indemnification. Armorblox will defend Customer from any unaffiliated third party claim to the extent the claim alleges that Customer’s use of the Armorblox Platform as provided by Armorblox to Customer under this Agreement, when used as permitted by this Agreement, infringes or misappropriates such third party’s U.S. patent or copyright. Armorblox shall have no obligation or liability for any claim of infringement or misappropriation to the extent that it arises out of or relates to: (i) Customer’s use of the Armorblox Platform after Armorblox notifies Customer to discontinue use due to such a claim; (ii) a combination of the Armorblox Platform with a non-Armorblox application, product, data or business process; (iii) damages attributable to a non-Armorblox application, product, data or business process; (iv) modifications made other than by Armorblox, including changes made by Armorblox for or on behalf of Customer; (v) continued use of any product or service for which Armorblox has provided Customer with modifications or substitutes if use of such modifications or substitutes would have prevented the claim; or (vi) use of the Services in a manner prohibited under this Agreement. This Section states Customer’s sole and exclusive remedy and the entire liability of Armorblox, its officers, directors, employees, shareholders or contractors or representatives of the foregoing for infringement claims and actions. Customer will defend Armorblox from any unaffiliated third party claim to the extent the claim alleges a violation by Customer of the third party’s rights against Customer.
- Procedure. The indemnifying party’s obligations to the indemnified party under this Section 7 (“Indemnification”) are limited solely to paying (i) counsel hired by the indemnifying party to defend the claim; (ii) the reasonable and verifiable out-of-pocket costs incurred directly by the indemnified party in connection with defending the claim and/or assisting the indemnifying party in the defense thereof; and (iii) any direct damages finally awarded to such third party by a court of competent jurisdiction (after any appeals) or any settlement of the claim to which the indemnified party consents in writing. The indemnified party shall give prompt written notice to the indemnifying party of any such claim, allow the indemnified party’s exclusive control of the defense and any related settlement of any such claim; and furnish the indemnifying party with reasonable assistance in connection with the claim. Nothing in this Agreement shall prohibit the indemnified party from hiring separate counsel, at the indemnified party’s own expense.
- Assurance of Use. If Customer’s use of the Armorblox Platform is, or in Armorblox’s opinion is likely to be, enjoined due to the type of claim specified in Section 7.1, then Armorblox may, at its sole option and expense choose to: (i) procure for Customer the right to continue to use the Armorblox Platform under the terms of this Agreement; (ii) replace the Armorblox Platform with a functional equivalent; or (iii) modify the Armorblox Platform so that it becomes non-infringing (including disabling the challenged functionality), provided the modified Armorblox Platform remains substantially equivalent in function to the enjoined Armorblox Platform.
- Indemnification Liability Cap. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY’S AGGREGATE INDEMNIFICATION LIABILITY UNDER THIS AGREEMENT SHALL EXCEED THE GREATER OF (i) A SUM EQUAL TO THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO ARMORBLOX IN THE PREVIOUS TWELVE MONTHS FROM THE DATE THE CLAIM WAS MADE, OR (ii) $500,000. 8. Limitations and Exclusions. 1. Disclaimer of Other Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LIABILITIES RELATED TO A LOSS OF USE, PROFITS, GOODWILL OR SAVINGS) OR A LOSS OR DAMAGE TO ANY SYSTEMS, RECORDS OR DATA, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED IN ADVANCE OR AWARE OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. 2. Limitation of Liability. EXCLUDING LIABILITIES ARISING UNDER SECTION 7 (“INDEMNIFICATION”), WHICH LIABILITY SHALL BE LIMITED AS SET FORTH IN SECTION 7.6, OR SECTION 2 (“USE OF THE SERVICES; RESTRICTIONS”), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY (INCLUDING, BUT NOT LIMITED TO, LIABILITY FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER CONTRACT OR TORT CLAIMS) ARISING FROM OR RELATED TO THIS AGREEMENT, EXCEED THE AMOUNT OF FEES PAID AND PAYABLE TO ARMORBLOX UNDER THE ORDER FORM UNDER WHICH LIABILITY ARISES IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. 9. Term; Termination. 1. Term. The term of this Agreement shall commence on the Effective Date of an applicable Order Form and shall expire on the termination date set forth in such Order Form (the “Initial Term”). This Agreement and the Order Form shall automatically renew for successive one (1) year periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”) unless either Party provides the other Party with notice of non-renewal at least thirty (30) calendar days prior to the expiration of the then-current term. 2. Termination. 1. Material Breach. Either Party may terminate this Agreement upon thirty (30) days’ prior written notice if the other Party materially breaches this Agreement and does not cure such breach within thirty (30) days following receipt of notice specifying the breach. Armorblox reserves the right to suspend performance immediately during such notice period in the event that the breach at issue violates application usage restrictions, including those specified in Section 2.2 (“Restrictions”), or otherwise threaten the stability and operation of the Services. 2. Insolvency. Either Party may also have the right to terminate this Agreement immediately upon written notice in the event the other Party: (i) becomes insolvent; (ii) becomes subject to a petition in bankruptcy filed by or against it that is not dismissed within thirty days of the filing of such petition; (iii) is placed under the control of a receiver, liquidator or committee of creditors; or (iv) dissolves, ceases to function as a going concern or to conduct its business in the normal course. 3. Suspension of Services. Notwithstanding anything to the contrary herein, Armorblox may suspend the Services at any time if necessary to protect itself, the Services and / or other customers and users in connection with a reasonable security concern and upon reasonable belief that there has been a breach of Section 2.3 of this Agreement (“Restrictions”). 4. Material Diminishment. The Services including all service level agreements and the Support are subject to modification from time to time in Armorblox’s sole discretion. Notwithstanding the foregoing, Customer shall have the right to terminate the Agreement pursuant to Section 9.2.1 without any penalty if (i) a material modification to the Services or an applicable service level agreement is made which materially diminishes the functionality of the Services or materially diminishes such service level agreement, (ii) Armorblox has not obtained Customer’s written consent for such modifications, and (iii) Armorblox does not provide a remedy in the cure period stated in Section 9.2.1. 3. Effect of Termination. Upon the termination of this Agreement for any reason, then Customer will pay all amounts accrued or otherwise owing to Armorblox on the date of termination and all Order Forms under this Agreement shall also terminate. Termination in accordance with this section shall be without prejudice to any other rights or remedies of the Parties. Those provisions of this Agreement that expressly or by their nature survive termination shall survive any expiration or termination of this Agreement. 10. Miscellaneous. 1. Legal Compliance; Restricted Rights. Each Party agrees to comply with all Applicable Laws. Without limiting the foregoing, Customer acknowledges and agrees that the Armorblox Platform and Services are of U.S. origin for U.S. export control purposes and subject to the U.S. Export Administration Regulation. Diversion of the Services contrary to U.S. Law and regulation is prohibited; for additional information on U.S. export controls see www.bis.doc.gov. Customer represents that neither the U.S. Bureau of Industry and Security nor any other governmental agency has issued sanctions against Customer or otherwise suspended, revoked or denied Customer’s status under applicable export control regulations. The Services and Documentation are deemed “commercial computer software” and “commercial computer software documentation”, respectively pursuant to DFARS 227.7202 and FAR 12.212, and their successors, as applicable, and are provided with RESTRICTED RIGHTS. Any use, modification, reproduction, release, performance, display or disclosure of the Services or Documentation by the U.S. Government shall be governed by the terms of this Agreement and shall otherwise be prohibited except to the extent expressly permitted by the terms of this Agreement. 2. Notices. Any notices required or permitted to be given under this Agreement will be sent to Armorblox at firstname.lastname@example.org and to Customer at the email address provided on an Order Form or otherwise. Notwithstanding the foregoing, legal notices required under this Agreement will be personally delivered or sent by certified or registered mail, return receipt requested, or by nationally recognized overnight express courier, to the address specified herein or such other address as a Party may specify in writing. Such notices will be effective upon receipt, which may be shown by confirmation of delivery. Notices to Armorblox shall be sent Attn: Legal (unless otherwise specified by Armorblox). 3. Assignment. Customer may not assign or otherwise transfer this Agreement without Armorblox’s prior written consent. 4. Force Majeure. Neither Party shall be liable for any delay or failure due to a force majeure event and other causes beyond its reasonable control. This provision shall not apply to any of Customer’s payment obligations. 5. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. 6. Governing Law and Venue. This Agreement is governed by the laws of the State of California, without regard to conflicts of laws principles. Any litigation arising out of or related to this Agreement shall be submitted to and resolved by a court of competent jurisdiction in San Francisco, California. In any action brought to enforce this Agreement, the prevailing party shall be entitled to receive its costs, attorneys’ fees, and other expenses of collection in addition to any other relief it may receive. 7. General. This Agreement, including its exhibits (all of which are incorporated herein), are collectively the Parties’ complete agreement regarding its subject matter, superseding any prior oral or written communications, including any “click-through” software license agreement embedded in the Services and any customer documents, terms, vendor forms and purchase orders, including all terms therein, all which are rejected and of no force or effect. Amendments or changes to this Agreement must be in mutually executed writings to be effective. Customer acknowledges and agrees that the individual executing this Agreement on behalf of Customer has the requisite power and authority to sign this Agreement on behalf of Customer. Unless otherwise expressly set forth in an exhibit that is executed by the Parties, this Agreement shall control in the event of any conflict with an exhibit. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain enforceable and in full force and effect. The Parties are independent contractors for all purposes under this Agreement; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the Parties. This Agreement does not grant any rights or remedies to any third parties.
Service Level Agreement
Platform Availability & Uptime
Armorblox will use commercially reasonable efforts to make the Armorblox Platform generally available twenty-four (24) hours a day, seven (7) days a week and will make commercially reasonable efforts to provide Availability of the Armorblox Platform of at least 99.9% of Available Time in a given month.
- “Availability” or “Available” means the time during each calendar month that the material functionalities of the Armorblox Platform are available for use by Customer.
- “Available Time” means all minutes in a given month, less Excused Unavailability
- “Excused Unavailability” means: (i) scheduled maintenance of which Armorblox has given Customer at least two (2) business days prior notice; (ii) unavailability caused by acts or omissions of Customer, Users or Customer’s agents, by Customer or third party equipment or caused by any breach by Customer or its Authorized Agents of this Agreement, or any permitted suspension of service by Armorblox; (iii) unavailability caused by network unavailability or bandwidth limitations outside of the Armorblox network; (iv) issues arising from bugs or other problems in the software, firmware or hardware of Armorblox ’s suppliers, or issues arising from API failure or malfunction or third party integrations with the Armorblox Platform; (v) hacks, malicious introduction of viruses, disabling devices, and other forms of attacks that disrupt access to the Armorblox Platform; (vi) power outages or other telecommunications or Internet failures; and (vii) events outside of Armorblox’s reasonable control. In the case of subsections (iv) and (v), such events shall be included in the calculation of Excused Unavailability if the outage could not have been prevented by reasonable precautions by Armorblox. Armorblox’s records and data will be the sole basis for all SLA calculations and determinations.
If in a given calendar month the Services are not available for at least 99.9% of all Available Time, then Customer may request a Service Credit from Armorblox by submitting a written request for a Service Credit to email@example.com with “SLA Credit Request” in the subject line, within thirty (30) days after the end of the month for which the Service Credit applies. Service Credits will be provided as a percentage of one month’s Fees (excluding one-time charges such as set-up) applicable to the Services that did not meet the Available Time (“Subscription Fees”) for requests made in accordance with this SLA as shown in the table below.
Service Credits will be applied against the next upcoming Subscription Fee otherwise due from Customer, or will be refunded upon expiration or termination of the Agreement. The parties agree that the Service Credit represents liquidated damages and is not a penalty; this SLA states Customer’s sole and exclusive remedy for any service level or support deficiencies of any kind.