This Master Software as a Service and Support Services Agreement (“Agreement”) is entered into as of __________, ____ 2019 (“Effective Date”), by and between Dealius, LLC, a Florida limited liability company with offices at 201 Specialty Point, Sanford, Florida 32771 (“Dealius”) and ____________ whose principal office is located at ____________ (“Customer”).
Dealius is the proprietor of Dealius, a web based commercial real estate transaction management software application and provides users with the right to use Dealius and the software modules listed in executed ordering documents (“Service Orders”), support services for such programs, as well as any other services provided by Dealius, as defined in the Service Orders (collectively, the “Services”). Customer desires to use the Services according to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual obligations set forth herein, the parties agree as follows:
1. Scope. “Agreement” means this document, the Service Level Commitment attached as Exhibit A (the “Service Level Commitment”), the Documentation and any Service Orders attached hereto from time to time. Subject to the terms and conditions set forth herein, Dealius will provide Customer and Customer’s subsidiary, franchisee and affiliated companies (“Affiliates”) with (i) a nonexclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for Customer’s internal business operations and subject to the terms of this Agreement, including the Documentation (as defined in Section 12 below) and (ii) support services for the Services as set forth in the Service Order(s) and the Service Level Commitment, which shall be accessible via the internet through which Customer may enter, store, upload, download, process and manage its Data (defined in Section 13 below) related to its business. All professional services desired by Customer shall be listed and described in a mutually agreed to Service Order(s). Customer acknowledges that Dealius has no delivery obligation and will not ship copies of the Dealius programs to Customer as part of the Services. Customer agrees that it does not acquire under the agreement any license to use the Dealius programs specified in the ordering document in excess of the scope and/or duration of the Services. Upon the end of the Agreement or the Services hereunder, Customer right to access or use the Dealius programs specified in the Service Order(s) and the Services shall terminate.
2. Agreement Term. Unless earlier terminated pursuant to this Agreement, this Agreement shall be in effect for an initial term ending one (1) year from the Effective Date (“the Initial Term”), and thereafter shall be automatically renewed unless terminated by either party with a 30 day written notice (each such period a “Renewal Term” and together with the Initial Term, the “Term”).
3. Fees and Charges; Taxes. The fees for the Services shall be as set forth in the Service Order(s), and during each year of the Term, Customer will pay all fees in accordance with the fees listed in the related Service Order(s).
4. Payment Terms. The invoices for Services shall be submitted pursuant to the schedule established in the Service Order(s). Unless otherwise agreed in the applicable Service Order, payment for all invoices is due within fifteen (15) days after receipt of invoice. All invoices shall separately itemize all charges for all applicable sales and use taxes due with respect to the transaction. If Customer disputes in good faith any fee, expense, or other charge, Customer will promptly provide Dealius with notice of such dispute and reasons. Customer and Dealius will use their reasonable efforts to promptly resolve the dispute.
5. Late-Payment. If timely payment is not received within thirty (30) days from the date the payment is due, Customer will be given a written notice by Dealius of its intention to suspend or terminate Services to Customer. Customer will have thirty (30) days to cure the payment issue and/or will enter into a written payment arrangement acceptable to Dealius. In the absence of a payment arrangement or full payment, Dealius reserves the right to either suspend or terminate Services to Customer upon expiration of the 30-day cure period. If any invoiced amount is not received by the due date, then without limiting other rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher.
6. Restrictions. Unauthorized use of the Service, or the resale of the Service, is expressly prohibited. Customer shall not copy, license, sell, transfer, make available, distribute, or assign the Services or any rights to use or access the Services to any third party, except as provided for herein or authorized by Dealius in writing.
7. Information Control; Release. Dealius does not control the entry or manipulation of Data by Customer and/or its third party contractors. Accordingly, Dealius has no control over or liability for the integrity, truth or accuracy of information entered, processed or managed by Customer and/or its third party contractors.
8. Third Party Users. Customer may allow certain parties with whom Customer has a contractual relationship such as a supplier or customer and the employees of third party contractors (hereunder “Business Third Parties”) to use the Services solely for the purpose of providing services to Customer. All such persons must maintain the Confidential Information (as defined in Section 19) in confidence and use the Services only as permitted by this Agreement. Customer agrees to use commercially reasonable efforts to enforce the provisions of such confidence set forth in this section and all other provisions of this Agreement as applicable to any and all uses of the Service. Customer will take reasonable care with information release, integration, and Business Third Parties.
9. Links To and Integration with Third Party Sites. Dealius does not endorse any third party systems or sites (or products, services or opinions offered on any sites) which may be linked through the Service. In no event shall Dealius be responsible for any content, products, or other materials on or available from such sites and Customer shall bear all risks associated with the access and use of such Web sites and third party content, products and services.
10. User Accounts. A user account is required to access the Services and may be accessed and used only by those authorized individuals who are registered with Dealius.
11. Customer’s Responsibilities. Customer is responsible for any and all activities that occur under Customer’s account and ensuring that Customer’s authorized users’ exit or log off from Customer’s account at the end of each session of use. Customer shall notify Dealius as soon as commercially reasonable of any known unauthorized use of Customer’s password or account or any other breach of security that is known or suspected by Customer.
12. Documentation. The written instructions, manuals, materials and other documentation, including all subsequent revisions thereto, if any, created and/or provided by Dealius as part of the Services (the “Documentation”) may be used by Customer and its Business Third Parties solely at the site(s) of Customer’s and Business Third Parties’ and Customer’s Affiliates’ business operations and solely for the purpose of assisting Customer in using the Services for the internal business purposes of Customer and its Affiliates. Dealius agrees to deliver one copy of the Documentation, if any, to Customer in electronic form. Documentation provided in machine-readable form may be printed and used solely for the internal purposes of Customer and its Affiliates. Except for production copies and a reasonable number of additional back-up archival copies, no other reproduction or use of the Documentation is permitted unless mutually agreed upon in writing. The Documentation will be provided solely in the English Language unless and agreed by Dealius.
13. Account Information and Data. Dealius does not own any data, information or material that Customer, its Affiliates or Business Third Parties submit to the Services (“Data”). As between Dealius and Customer, Customer shall be the exclusive owner of all such Data and all Data shall be deemed the Confidential Information of Customer, subject to Section 19 of this Agreement. Dealius will not monitor, edit, or disclose any information regarding Customer or Customer’s account, including any Data, without Customer’s prior written permission except in accordance with this Agreement (including Section 19 regarding Confidential Information). Dealius shall not be responsible for any alteration of Customer’s transmissions or Data by Business Third Parties. Customer acknowledges that Dealius may use certain data in aggregate form to develop statistical models or share with third parties, but such information will not include personally identifying information or information identifying Customer. Customer, not Dealius, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Data. Dealius shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data, except as set forth in the Service Level Commitment, and except to the extent resulting from Dealius’ gross negligence or willful misconduct. It is understood that Dealius is responsible for backup, recovery and safekeeping of Data to the extent set forth in this Agreement.
14. Use, Storage and Other Limitations. Dealius will consult and will obtain approval from Customer to establish or modify general practices and limits concerning use of the Service, including without limitation the maximum number of days that Content (as defined in Section 20 below) and Data will be retained by the Service. The maximum disk space that will be allotted on Dealius’ or its business partners’ or service providers’ servers on Customer’s behalf will be based upon the scope of the proposal in the Service Order(s)
15. Parties Conduct. The parties agree to abide by all applicable local, state, national and foreign laws, treatises and regulations applicable to the performance of their respective obligations under this Agreement.
16. Implementation Services. Dealius will provide Customer with its implementation services as set forth in the Service Order(s).
17. Service Levels. Dealius represents and warrants that it will provide the Services in accordance with the Service Level Commitment, which is incorporated herein by this reference, and in accordance with good industry practices. Dealius shall be responsible, directly or through authorized subcontractors, for meeting the applicable service levels required under the Service Level Commitment.
(a) For Cause. Either party may terminate this Agreement if the other party fails to comply with a material term of this Agreement, in addition to exercising any other rights or remedies available to that party, provided that the terminating party gives written notice (“Intent to Terminate”) to the other party of the non-compliance and the other party be afforded a thirty (30) day period to cure the non-compliance. “Effective Date of Termination” shall mean the date after the expiration of the thirty (30) day cure period following an uncured breach.
(b) For Convenience. Customer may terminate this Agreement for its convenience at any time by providing written notification sixty (60) days in advance of the effective date of termination. In such case, assuming Dealius is not in breach, fees for the remaining duration of the Term of the applicable Service Order(s) shall be due upon Customer’s receipt of the invoice from Dealius.
(c) Termination and Transition Assistance Services. From the date that either party receives or gives a written notice of termination of a Service Order and for not less than twelve (12) months after such expiration or termination, Dealius will provide to Customer, as Customer requests in writing, ongoing services under such Service Order and transition services (“Termination & Transition Assistance Services”). Fees for Termination and Transition Assistance Services shall be an amount equal to a pro rata portion of the fees for the period during which Termination Assistance Services are delivered. Dealius will not be required to provide Termination and Transition Assistance Services in case of Customer’s breach of the Agreement for its failure to make timely payment.
19. Confidential Information; Data Security.
(a) The term “Confidential Information” means all confidential and/or proprietary knowledge, data or information of the party. Each party when it is the receiving party (the “Receiving Party”) agrees to maintain the confidentiality of the other party’s (“Disclosing Party”) Confidential Information, including taking the following steps: using the Confidential Information only as expressly authorized herein; safeguarding and maintaining the Confidential Information in confidence, and not disclosing, providing, or making the Confidential Information or any part thereof available in any form or medium to any third party except to Receiving Party’s employees, contractors and consultants who have a need to access such Confidential Information hereunder and are bound by an obligation to keep such information confidential.
(b) The provisions of Section 19 shall not apply to any information which: (i) was at the time of disclosure to Receiving Party, available to the public or otherwise in the public domain, (ii) after disclosure becomes available to the public or otherwise part of the public domain through no breach of this Agreement by the Receiving Party, (iii) was in the possession of Receiving Party prior to the time of initial disclosure to it by Disclosing Party, (iv) was received by Receiving Party from a third party who had a lawful right to disclose such information to it, (v) was independently developed by Receiving Party without reference to Disclosing Party’s Confidential Information or (vi) was ordered to be disclosed by the court, administrative agency, or other governmental body with jurisdiction over the parties hereto, or as otherwise required by law, provided that Receiving Party will have provided Disclosing Party with prompt written notice, in advance if legally permissible, of such required disclosure and will allow Disclosing Party to seek a protective order with respect to the confidentiality of the information required to be disclosed. Further, Receiving Party will reasonably cooperate with and assist Disclosing Party, at Disclosing Party’s cost and expense, in connection with obtaining such protective order. The Receiving Party’s obligations with respect to the Disclosing Party’s Confidential Information shall survive for a period of three (3) years following termination of this Agreement.
20. Proprietary Rights. Except for the access and use, the Services granted to Customer pursuant to the terms of this Agreement and Customer’s ownership of the Data, Customer has no right, title or interest in or to the Services or any software, source code, object code, data model or platform, information, images, products, services, documentation, materials or content of or provided as part of or through the Services (the “Content”) and Dealius retains all proprietary right, title and interest, including copyright and all other intellectual property rights, in and to the Services and Content, including, without limitation, stories, articles, text, images, and other multimedia data. Dealius and/or Dealius products and services referenced herein are trademarks or service marks of Dealius exclusively. Customer may not:
(a) remove or modify any program markings or any notice of Dealius’ or its licensors’ proprietary rights;
(b) make the programs or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations;
(c) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Dealius;
(d) disclose results of any Services or program benchmark tests without Dealius’ prior written consent; and
(e) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Dealius programs or materials available, to any third party other than, as expressly permitted under the terms of the agreement.
21. Indemnification. If a third party makes a claim against either Customer or Dealius (“Recipient” which may refer to Customer or Dealius depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either Customer or Dealius (“Provider” which may refer to Customer or Dealius depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
• notifies the Provider promptly in writing, not later than 20 days after the Customer receives notice of the claim (or sooner if required by applicable law);
• gives the Provider sole control of the defense and any settlement negotiations; and
• gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.
If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects Dealius’ ability to meet its obligations under the relevant order, then Dealius may, at its option and upon 30 days prior written notice, terminate the order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to Recipient within or from the Services (e.g., a third party Web page accessed via a hyperlink). Dealius will not indemnify Customer to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Dealius. Dealius will not indemnify Customer for infringement caused by Customer actions against any third party if the services as delivered to Customer and used in accordance with the terms of this Agreement would not otherwise infringe any third party intellectual property rights. Dealius will not indemnify Customer for any infringement claim that is based on: (1) a patent that Customer was made aware of prior to the effective date of the agreement (pursuant to a claim, demand, or notice); or (2) Customer actions prior to the effective date of the Agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.
22. WARRANTIES. Dealius represents and warrants, and covenants throughout the Term and any Termination Assistance Period that the Services will perform in all material respects in accordance with the Documentation and the Service Orders(s). When any breach of the foregoing is brought to Dealius’ attention by Customer, or is a breach of which Dealius becomes aware, in addition to any other remedy available to Customer, Dealius will correct or repair any errors so that the System meets the foregoing criteria.
EXCEPT AS PROVIDED IN THIS AGREEMENT, INCLUDING ITS EXHIBITS, DEALIUS MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SYSTEM OR ANY CONTENT. DEALIUS DOES NOT REPRESENT OR WARRANT THAT: (I) THE USE OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) THE ACCURACY OR RELIABILITY OF CUSTOMER’S DATA, (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SYSTEM WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. EXCEPT AS PROVIDED IN THIS AGREEMENT, ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
CUSTOMER ACKNOWLEDGES THAT DEALIUS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. DEALIUS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
23. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE (INCLUDING BUT NOT LIMITED TO CUSTOMER’S USE OR INABILITY TO USE THE SERVICE OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES), EVEN IF THAT PARTY HAD BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 21 ABOVE, DEALIUS’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT OR SERVICE ORDER, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO DEALIUS FOR THE SERVICES UNDER THE SERVICE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
24. Export Control. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. Customer agrees that such export control laws govern Customer use of the Services (including technical data) and any deliverables provided under this Agreement, and Customer agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer agrees that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws.
25. Marketing. Dealius may use engagements covered within this Agreement and related Service Orders in public announcements, websites and other marketing materials.
26. Notice. Any notice provided for or permitted under this Agreement will be treated as having been given when (a) delivered personally, (b) sent by commercial overnight courier with written verification of receipt, (c) mailed postage prepaid by certified or registered mail, return receipt requested, or (d) sent by electronic mail.
27. Force Majeure. Neither party will be liable when and to the extent its failure to perform is due to unforeseen circumstances or causes beyond its reasonable control, including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, fire, flood, accident, internet related issues beyond Dealius’ control, global internet strikes, inability to secure transportation, facilities, fuel, energy, labor or materials, and provided such default or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the nonperforming party through the use of alternate sources, work-around plans or other means (a “Force Majeure Event”). The party suffering a Force Majeure Event shall give notice to the other party as soon as reasonably practicable, stating the period of time the Force Majeure Event, and the effects thereof are expected to continue and shall use reasonable efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
28. General. This Agreement will be governed by State of Florida, USA law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction and the parties agree to submit to the exclusive jurisdiction of, and venue in, the courts in Seminole County, Florida in any dispute arising out of or relating to this Agreement.
29. Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between Customer and Dealius as a result of this Agreement or use of the Service. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the other party in writing. This Agreement (including its Exhibits) comprises the entire agreement between Customer and Dealius and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
30. Severability. Any provision of this Agreement that is unenforceable in any jurisdiction shall be ineffective only as to that jurisdiction and only to the extent of such enforceability without invalidating the remaining provisions hereof.
31. Survival. The rights and obligations of the parties which, by their nature, are normally intended to survive the termination or completion of the Services shall remain in full force and effect following termination of Services for any reason.
32. Assignment. Other than a Change of Control, neither party may assign or transfer any or all of its rights, or delegate any or all of its duties, under this Agreement or any Service Order, in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other party. “Change of Control” means a change in ownership of the party via a merger or consolidation (“Transaction”) in which the shareholders of the party after the Transaction would own, in the aggregate, less than 50% of the total equity or a sale of all or substantially all of the assets of such party.
33. Services Tools. Dealius may use tools, scripts, software, and utilities (collectively, the “tools”) to monitor and administer the Services and to help resolve Customer service requests. Data collected by the tools (excluding production data) may be used to assist in managing Dealius’ product and service portfolio and for license management. Customer agrees that (a) except as set forth in the following paragraph, Customer may not access or use the tools, and (b) Customer will not use or restore the tools from any tape backup at any time following termination of this Agreement.
If Dealius provides Customer with access to or use of any tools in connection with the Services, Customer’s right to use such tools is governed by the license terms that Dealius specifies for such tools; however, if Dealius does not specify license terms for such tools, Customer shall have a non-transferable, non-exclusive, limited right to use such tools solely to facilitate Customer’s administration and monitoring of Customer’s services environment, subject to the terms of this Agreement. Any such tools are provided by Dealius on an “as is” basis and Dealius does not provide technical support or offer any warranties for such tools. Customer’s right to use such tools will terminate upon the earlier of Dealius’ notice, the end of the services term, or the date that the license to use such tools ends under the license terms specified for such tools.
34. Risk of Loss. Each Party shall be responsible for risk of loss of, and damage to, any equipment, software or other materials in its possession or under its control, unless such loss of damage was caused by the acts or omissions of the other Party or its agents.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have caused their respective authorized representatives to sign this Agreement effective as of the day and year first written above.