This Master SaaS and Subscription Agreement (this “Agreement”) is entered into by and between DeepConnect Technologies Inc (“DeepConnect”) and the individual or legal entity that accepts this Agreement (“Customer”). By clicking “I Accept” (or a similar control), by registering for or creating an account, by executing an Order Form that references this Agreement, or by accessing or using the SaaS Service, Customer agrees to be bound by this Agreement as of the earlier of the date of such acceptance or first access or use (the “Effective Date”). If the individual accepting this Agreement does so on behalf of a company or other legal entity, such individual represents and warrants that they have the authority to bind that entity and its Affiliates to this Agreement, in which case “Customer” refers to that entity and its Affiliates. If the individual does not have such authority, or does not agree with this Agreement, they must not accept this Agreement and may not access or use the SaaS Service.
DeepConnect and Customer shall hereinafter be referred to jointly as the “parties” or singularly as a “party.”
RECITALS
WHEREAS, Customer desires to obtain access to solutions with respect to certain of its information technology needs; and DeepConnect wishes to provide the solution to Customer, each on the terms and conditions set forth in this Agreement.
WHEREAS, DeepConnect Technologies Inc via its product “GoWarm” offers a unique SaaS Service for monitoring customers, prospects and any other contacts on LinkedIn through an interactive work area where users can upload their customer, prospect or any other contacts (“Contacts”) and companies they are selling into (“Accounts”) on the GoWarm platform and other related services for smarter prospecting.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein and other valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1. Permitted Use. DeepConnect grants to Customer a worldwide, non-transferable, non-exclusive, non-sublicensable right to access and use the SaaS Service during the Subscription Term only for Customer’s internal business purposes and in accordance with the Documentation, the Order Form and this Agreement.
1.2. Orders: Customer may from time-to-time request DeepConnect to supply the SaaS Service for a specified number of Users, for a specific number of contacts, duration and any Technical Service as agreed by the parties in an Order Form. An Affiliate of Customer may also enter its own Order Form(s) under the terms of this Agreement.
1.3. Users: Only Users may access and use the SaaS Service, and Customer maintains sole control over (i) Customer Content, Contacts and Accounts, (ii) its Users’ access and use of the SaaS Service in compliance with this Agreement, and actions taken through their Users’ accounts (excluding misuse of accounts caused by DeepConnect’s breach of this Agreement), and (iii) the use and confidentiality of its Users’ logon credentials to the SaaS Service. Each party will promptly notify the other party if it becomes aware of any compromise of any logon credentials.
1.4. Administrators: Customer may designate individual User(s) as administrator(s) with certain rights of control and management over Customer’s SaaS Service account, including management of Users and Customer Content, Contacts and Accounts, as described in the Documentation.
1.5. Access to Customer Content, Contacts, Accounts within Organization: Customer acknowledges that to the extent its Users are invited to access any Customer Content, Contacts, Accounts any access to other artifacts in the GoWarm platform as well as any content the User submits will be under the sole control of that User who has uploaded Customer Content, Contacts and Accounts.
1.6. Sharing Settings. Customer controls contact source and target segments sharing settings, as described in the Documentation. DeepConnect has no liability for how others may access or use Customer Content, Contacts and Accounts as a result of Customer’s or its Users’ decision to share contacts.
1.7. Restrictions. Except as expressly authorized in this Section 1, Customer will not, and will not permit its Users to: (a) provide access to, distribute, sell or sublicense the Services to a third party, (b) use the Services on behalf of, or to provide any product or service to, third parties, (c) use the Services to develop a similar or competing product or service, (d) scrape, data mine, reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to or unauthorized data from the Services, except to the extent expressly permitted by Law with prior notice to DeepConnect and permission thereof (e) modify or create derivative works of the Services or copy any element of the Services (other than authorized copies of the Software), (f) remove or obscure any proprietary notices in the Services or otherwise misrepresent the source of ownership of the Services, (g) publish benchmarks or performance information about the Services or facilitate third parties to compile benchmarks or performance measurements about any Services, (h) interfere with the Services operation, circumvent its access restrictions or conduct any security or vulnerability tests of the Services, (i) transmit any viruses or other harmful materials to the Services, (j) allow individuals to share User logon credentials, (k) engage in any fraudulent, misleading, illegal, or unethical activities using or related to the Services or (l) use the Services to store or transmit material which contains illegal content.
During the Subscription Term, the SaaS Service will be subject to the SLA (Annexure I). DeepConnect will provide Customer with Support in accordance with the Support Policy.
3. Customer Content, Contacts and Accounts
3.1. Data Use: Customer grants DeepConnect the non-exclusive, worldwide, limited right to use, copy, store, transmit, and display Customer Content, Contacts and Accounts and to modify and create derivative works of Customer Content, Contacts and Accounts, but only as necessary to provide Services under this Agreement.
3.2. Security: DeepConnect uses reasonable technical and organizational measures designed to protect the SaaS Service and Customer Content, Contacts and Accounts as described in the Security Policy. DeepConnect will maintain commercially reasonable standards and controls designed which more specifically listed in Annexure II to detect and prevent the introduction of viruses, malware, Trojan horses, and other code intended to do harm.
3.3. Personal Data: Where DeepConnect acts as a controller, DeepConnect uses Usage Data and User account information as described in its Privacy Policy.
3.4. Data Export: During the Subscription Term or within 30 days thereafter (the “Data Export Period”), Customer may export its Customer Content, Contacts and Accounts using the export features described in the Documentation. If Customer elects to proactively delete its account at any time, all associated Customer Content, Contacts and Accounts held on that account will be deleted permanently in accordance with DeepConnect’s standard schedules and procedures.
4.1. Responsibility for Customer Content, Contacts and Accounts: Customer is responsible for its Customer Content, Contacts and Accounts, including its content and accuracy, and agrees that its use of the Services and all Customer Content, Contacts and Accounts will comply with all applicable Laws. Customer represents and warrants that it has made all disclosures and has all rights, consents, and permissions necessary or legally required to use its Customer Content, Contacts and Accounts with the Services and grant DeepConnect the rights in Section 3.1 (Data Use), all without violating or infringing Laws, third-party rights (including intellectual property, confidentiality, publicity, or privacy rights) or any terms or privacy policies that apply to the Customer Content, Contacts and Accounts.
4.2. Prohibited Uses: Customer may not use the Services with Prohibited Data or for High-Risk Activities. Customer acknowledges that the Services are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that DeepConnect is not a Business Associate as defined under HIPAA. Notwithstanding any other provision in this Agreement, DeepConnect bears no liability for Prohibited Data or the use of the Services for High-Risk Activities involving the Customer, its employees, agents, affiliates, representatives, etc.
DeepConnect may suspend Customer or a User’s access to and use of all or any part of the Services if (a) Customer fails to pay any undisputed fee(s) within 10 days of receiving notice of non-payment; or (b) DeepConnect reasonably believes Customer is in breach of Section 1 (The SaaS Service) or Section 4 (Customer Obligations), and/or its actions risk harm to other customers or the security, availability or integrity of any of the Services. Where practicable, DeepConnect will use reasonable efforts to provide Customer with prior notice of the suspension. Once Customer resolves the issue leading to suspension, DeepConnect will promptly restore Customer’s or User’s access to the relevant Services in accordance with this Agreement.
DeepConnect allows integrations with Third Party Platforms. If Customer elects to use Third-Party Platforms with the Services, (a) such use of Third-Party Platforms is not subject to the terms of this Agreement, (b) Customer acknowledges that DeepConnect does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability or interoperability or how the Third-Party Platforms use Customer Content, Contacts and Accounts, and (c) Customer gives DeepConnect the right to access and exchange Customer Content, Contacts and Accounts with the Third-Party Platform in relation to Customer’s use of the Service. Customer shall not use integration with Third-Party Platforms to circumvent any restrictions under this Agreement.
Any purchased Technical Services are as described in the relevant Order. Customer will give DeepConnect timely access to Customer Materials reasonably needed for the Technical Services, and if Customer fails to do so, DeepConnect’s obligation to provide Technical Services will be waived off to the extent such lack of access prevents DeepConnect from providing the Technical Services. DeepConnect will use Customer Materials only for purposes of providing Technical Services. Any Technical Services deliverables relate to the configuration and/or use of the SaaS Service and do not constitute “work for hire.”
8.1. Subscription Term: Each Subscription Term will be set forth in the Order Form executed by the parties and incorporated herein by reference.
8.2. Fees and Taxes: Fees are invoiced as described in the Order. If Customer has a good faith dispute of an invoice (or any portion thereof), it shall provide DeepConnect by the invoice due date with (a) written notice, (b) reasonable detail of the basis of such dispute, and (c) payment of the undisputed portion of the invoice. The parties shall cooperate in good faith to resolve such disputes. Unless the Order provides otherwise, all fees are due within 60 days of the invoice date. DeepConnect reserves the right to charge a late payment interest fee up to 1.5% per month or the maximum amount allowed by Law, whichever is less. All fees are non-refundable except as set out in Section 9.2 (Warranty Remedy), Section 13.4 (Mitigation and Exceptions) and the SLA (Annexure I). If Customer requires that DeepConnect use a third-party payment processor (e.g. Ariba, Stripe, etc.) for invoicing and payment hereunder, Customer shall be responsible for any fees and charges associated with such use (including registration, participation, and payment processing) and Customer shall reimburse DeepConnect for any such fees and charges set forth in an invoice. Fees are exclusive of all Taxes. Customer is responsible for any sales, use, goods and services, value-added, withholding or similar taxes or levies that apply to its Orders, whether domestic or foreign (“Taxes”), other than DeepConnect ’s income tax. If Customer is exempt from Taxes, then Customer shall provide a valid exemption certificate to DeepConnect upon execution of the applicable Order.
8.3. Reseller Specific Terms: To the extent Customer uses a Reseller in order to access and use any Services pursuant to this Agreement, the following terms will apply:
(a) Customer will pay applicable fees to Reseller, not DeepConnect, as agreed between Customer and Reseller. If Customer is entitled to a refund under this Agreement, DeepConnect will refund any fees to Reseller, and Reseller will be solely responsible for refunding any amounts to Customer, unless otherwise specified. For purposes of any liability caps in this Agreement, such cap amounts will be calculated based on the amounts paid or payable to DeepConnect by Reseller, not by Customer; and
(b) Reseller is not a party to this Agreement and is not authorized to modify this Agreement or make any promises or commitments on DeepConnect’s behalf. DeepConnect is not bound by any obligations to Customer other than those in this Agreement. DeepConnect is not a party to (or responsible under) any separate agreement between Customer and Reseller. DeepConnect is not responsible for Reseller’s acts, omissions, products, or services.
9.1. Limited Warranty: DeepConnect warrants to Customer that:
(a) The SaaS Service will perform materially as described in the Documentation and DeepConnect will not materially decrease the overall functionality during the Subscription Term (the “Performance Warranty”), and
(b) It will perform any Technical Services in a professional and workmanlike manner with reasonable skill and care (the “Technical Services Warranty”).
9.2. Warranty Remedy: If DeepConnect breaches Section 9.1 (Limited Warranty) and Customer makes a reasonably detailed written warranty claim within 30 days of discovering the issue, then DeepConnect will use reasonable efforts to correct the non-conformity. If DeepConnect’s reasonable efforts fail to remedy the breach of warranty within 60 days of Customer’s warranty claim, either party may terminate any affected Order as relates to the non-conforming SaaS Service or Technical Services. DeepConnect will then refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Technical Services (for the Technical Services Warranty). These procedures are Customer’s exclusive remedy and DeepConnect’s entire liability for breach of the warranties in Section 9.1. These warranties do not apply to (a) issues caused by misuse or unauthorized modifications, (b) issues in or caused by Third-Party Platforms or other third-party systems or (c) Trials and Betas or other free or evaluation use.
9.3. Disclaimers: Except as expressly provided in Section 9.1 (Limited Warranty), the Services are provided “AS IS.” DeepConnect and its suppliers make no other commitments, assurances, warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title or noninfringement. Without limiting its express obligations in Sections 2 (SLA and Support) and 3.2 (Security), DeepConnect does not warrant that Customer’s use of the Services will be uninterrupted or error-free or that the Services will meet Customer’s requirements, operate in combination with third-party services used by Customer or maintain Customer Content, Contacts and Accounts without loss. DeepConnect is not liable for delays, failures, or problems inherent in use of the Internet and electronic communications or other systems outside DeepConnect’s control.
10.1. Term: This Agreement starts on the Effective Date and shall continue to apply until all Order Forms have expired or been terminated in accordance with this Agreement.
10.2. Termination: Either party may terminate this Agreement (including all Orders) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay undisputed fees) within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
10.3. Effect of Termination: Upon expiration or termination of (a) this Agreement, Customer’s access to Services will cease; and (b) any Order, then Customer’s access to the Services provided for under that Order will cease, in each case other than limited use of the SaaS Service to export Customer Content, Contacts and Accounts as described in Section 3.4 (Data Export). Upon expiration or termination of this Agreement or at Discloser’s written request, Recipient will promptly return to the Discloser or destroy all copies of Discloser’s Confidential Information and provide to the Discloser a written confirmation evidencing the return or deletion. The obligation to return or destroy Confidential Information shall not apply to computer records and files which have been created pursuant to an automatic electronic archiving, IT back-up, or internal disaster recovery procedures to the extent legally permitted; provided that all such data shall remain subject to the confidentiality obligations hereunder and safeguarded in accordance with the terms of this Agreement.
10.4. Survival: These Sections survive expiration or termination of this Agreement: 1.7 (Restrictions), 3.4 (Data Export), 4 (Customer Obligations), 8.2 (Fees and Taxes), 9.3 (Disclaimers), 10.3 (Effect of Termination), 10.4 (Survival), 11 (Ownership), 12 (Limitations of Liability), 13 (Indemnification), 14 (Confidentiality), 16 (General Terms) and 17 (Definitions). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
11. Ownership
Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for DeepConnect’s use rights in this Agreement, between the parties Customer retains all intellectual property and other rights in Customer Content, Contacts and Accounts and Customer Materials provided to DeepConnect. Except for Customer’s use rights in this Agreement, DeepConnect and its licensors retain all intellectual property and other rights in the Services, deliverables and related DeepConnect technology, templates, formats, and dashboards, including any modifications or improvements to these items made by DeepConnect. DeepConnect may generate and use Usage Data to operate, improve, analyze, and support the Services and for other lawful business purposes, provided Usage Data shall not contain Customer Content, Contacts and Accounts. If Customer provides DeepConnect with feedback or suggestions (“Feedback”) regarding the Services or other DeepConnect offerings, DeepConnect may use such Feedback without restriction or obligation, provided Feedback shall be subject to Section 14 (Confidentiality) and shall not contain Customer Content, Contacts and Accounts or reference Customer as the source.
12.1. Exclusions of Liability: Subject to Section 12.3, neither party (nor its suppliers) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, lost revenues, loss of goodwill, interruption of business or for any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance.
12.2. Liability Cap: Subject to Section 12.3, each party’s entire aggregate liability arising out of or related to this Agreement will not exceed in the aggregate the amounts paid or payable by Customer to DeepConnect during the prior 12 months under this Agreement.
12.3. Uncapped Claims: Nothing in Section 12.1 or 12.2 shall be taken to limit or exclude either party’s liability for (a) breach of Section 1.7 (Restrictions), (b) indemnification obligations in Section 13 (Indemnification), (c) a party’s infringement, misappropriation, or violation of the other party’s intellectual property rights, (d) willful misconduct, gross negligence or (e) death, personal injury, or damage to tangible property.
12.4. Nature of Claims and Failure of Essential Purpose: The waivers and limitations in this Section 12 (Limitation of Liability) apply regardless of the form of action, whether in contract, tort (including negligence), or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose. Notwithstanding the limitations set forth in this Section 12, there shall be no limit to either party’s liability arising out of Customer’s payment obligations, the uncapped claims mentioned under Section 12.3 or liability which cannot be excluded or limited under applicable law.
13.1. Indemnification by DeepConnect: DeepConnect will (a) defend Customer from and against any unrelated third-party claim (“Claim”) to the extent alleging that the Services infringe a third party’s patent, copyright, trademark, or trade secret, and (b) indemnify and hold harmless Customer against any damages or costs finally awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by DeepConnect resulting from the Claim (c) indemnify and hold harmless Customer against any claim arising out of gross negligence or wilful misconduct of DeepConnect.
13.2. Indemnification by Customer: Customer will (a) defend DeepConnect from and against any unrelated third-party claim to the extent resulting from Customer Content, Contacts and Accounts, Customer Materials (if applicable), or Customer’s breach or alleged breach of Section 4 (Customer Obligations), and (b) indemnify and hold harmless DeepConnect against any damages or costs finally awarded against DeepConnect (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the Claim.
13.3. Procedures: The indemnifying party’s obligations in this Section 13 are subject to receiving (a) prompt notice of the claim, provided, the right to indemnity shall not be affected by a failure or delay by the indemnified party in giving notice, unless the rights and remedies of the indemnifying party have been prejudiced by such delay, (b) the exclusive right to control and direct the investigation, defense and settlement of the Claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any Claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Services when DeepConnect is the indemnifying party). The indemnified party may participate in a Claim with its own counsel at its own expense. Notwithstanding the foregoing, any costs, or expenses (including attorneys’ fees) incurred by the indemnified party prior to giving notice and tendering the defense to the indemnifying party shall be borne by the indemnified party.
13.4. Mitigation and Exceptions: In response to an actual or potential infringement claim, if required by settlement or injunction or as DeepConnect determines necessary to avoid material liability, DeepConnect may at its option: (a) procure rights for Customer’s continued use of the Services, (b) replace or modify the allegedly infringing portion of the Services to avoid infringement without reducing the Service’s overall functionality or (c) terminate the affected Order and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. DeepConnect’s obligations in this Section 13 do not apply (1) to the extent infringement results from Customer’s modification of the Service or use of the Service in combination with items not specified in the Documentation or provided by DeepConnect (including Third-Party Platforms), (2) to infringement resulting from Software other than the most recent release provided by DeepConnect (where Customer has been notified about such recent release), (3) to unauthorized use of the Services, (4) if Customer settles or makes any admissions about a Claim without DeepConnect’s prior consent, (5) if Customer continues to use the Services (or any element thereof) after being notified of allegedly infringing activity or informed of modifications that would have avoided the alleged infringement or (6) to Trials and Betas or other free or evaluation. Sections 13.1 and 13.4 set forth Customer’s exclusive remedy and DeepConnect’s entire liability regarding infringement of third-party intellectual property rights.
14.1. Definition: “Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Without limiting the foregoing (a) the terms and conditions of this Agreement and any technical or performance information about any of the Services shall be treated exclusively as DeepConnect’s Confidential Information; and (b) Customer Content, Contacts and Accounts shall be treated exclusively as Customer’s Confidential Information.
14.2. Obligations: As a receiving party, each party will (a) not disclose the other party's Confidential Information to third parties except as permitted in this Agreement, including Section 3.1 (Data Use), and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its Affiliates, employees, agents, contractors, and other representatives having a legitimate need to know (including, for DeepConnect, the subcontractors referenced in Section 16.9), provided it remains responsible for their compliance with this Section 14, and they are bound to confidentiality obligations no less protective than this Section 14.
14.3. Exclusions: These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt under this Agreement, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without using the disclosing party’s Confidential Information.
14.4. Remedies: Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 14.
14.5. Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Customer Content and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
15. AUDIT RIGHTS
15.1 Customer personnel or its representatives (e.g., independent auditors) may audit, test and inspect DeepConnect’s information security program and its facilities to assure that Customer’s data and Confidential Information are adequately protected (an “Audit”). An Audit may be conducted during regular business hours (i) on an annual basis, (ii) following a Data Incident (as defined below), or (iii) to confirm remediation of previous Audit findings. In its reasonable discretion, Customer will determine the scope of any such Audits, which may cover, without limitation: DeepConnect’s systems, general controls and security practices and procedures, disaster recovery and backup procedures, compliance with applicable regulatory requirements, and subcontractors or subprocessors.
15.2 DeepConnect will fully cooperate with Customer in an Audit, including making available any relevant personnel or documentation on a confidential basis. Customer will provide DeepConnect with a summary of the findings from each audit report, and will make itself available to discuss results, including any recommended remediation plans. If DeepConnect is in breach or otherwise not in compliance with its obligations with Customer, then Customer may conduct additional Audits, at DeepConnect ’s expense.
15.3 In addition to the Audit rights above, DeepConnect will engage an independent, certified third party to prepare an audit report ISAE3402/SSAE18(SOC-2) and/or ISO 27001 audit and penetration testing for internet facing applications or network each year for ensuring compliance of relevant controls under this Agreement. At Customer’s request, DeepConnect will provide the findings from such audits and penetration testing to Customer. At its own expense, DeepConnect will timely make all required corrections or remediation recommended by such audit(s); otherwise, Customer may terminate this Agreement for breach.
15.4 If DeepConnect becomes aware of any actual or suspected unauthorized access to or disclosure, acquisition or modification of Customer’s data (a “Data Incident”), DeepConnect will notify Customer of such Data Incident within 48 hours, and without undue delay take all action as may be necessary to preserve forensic evidence and to eliminate the cause of such Data Incident. DeepConnect will provide Customer with all information necessary for customer to fully understand the nature and scope of the Data Incident. DeepConnect will provide Customer with information about what DeepConnect has done or plans to do to minimize any harmful effect or the unauthorized use or disclosure of, or access to, Customer’s data.
16. Trials and Betas
If Customer receives access to the Services or Service features on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by DeepConnect (or if not designated, 30 days). Trials and Betas are optional and either party may terminate participation or discontinue using Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that DeepConnect may add, remove, change, separately release, or never release. Trials and Betas and their features and performance metrics comprise DeepConnect Confidential Information. Notwithstanding anything else in this Agreement, DeepConnect provides Trials and Betas “AS IS.”
17.1. Assignment. Except as otherwise set forth in this Agreement, neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganisation, acquisition, or other transfer of all or substantially all its assets or voting securities, with reasonable notice to the other party. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
17.2. Governing Law, Jurisdiction and Venue. Unless otherwise agreed to herein, this Agreement is governed exclusively by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in Delaware and both parties submit to the exclusive jurisdiction of those courts.
17.3. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs in connection with such action.
17.4. Notices. Except as set out in this Agreement or unless otherwise required by applicable laws, any notice or consent under or in connection with this Agreement must be in writing to DeepConnect at the address set out in this Section, and to Customer at the email or postal address associated with Customer’s account and will be deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered mail (return receipt requested), (c) one day after dispatch if by a commercial overnight delivery service, or (d) upon receipt if by email, with proof of delivery and receipt. Either party may update its address with notice to the other party. All notices to DeepConnect must include a copy emailed to legal@gowarm.ai. Non-legal operational notices will be sent to Customer’s assigned DeepConnect administrator by email or through the SaaS Service.
17.5. Entire Agreement. This Agreement sets out the parties’ entire agreement regarding its subject matter and supersedes any and all prior and contemporaneous agreements, promises, assurances and understandings between the parties (whether written or oral) regarding its subject matter. In the event of any conflict among the terms of the MSA, Order(s), and the Policies, the order of precedence shall be as follows: (a) the Order, (b) the MSA, and (c) the Policies, including any respective exhibits to the foregoing. Any translated versions of the Agreement in a language other than English are provided as a courtesy only. In the event of any conflict or discrepancy between any translated version of the Agreement and the English language version, the English language version shall prevail. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
17.6. Amendments. Any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorized representatives in order to be legally effective or, as appropriate, agreed through electronic means provided by DeepConnect. Nonetheless, DeepConnect may modify the Policies to reflect new features or changing practices, provided that such modifications will not materially decrease DeepConnect’s overall obligations or Customer’s rights under the relevant policy. The terms in any past, contemporaneous or future Customer purchase order, business form or vendor management portal will not amend or modify this Agreement and are expressly rejected by DeepConnect; any of these documents are for administrative purposes only and have no legal effect.
17.7. Waivers and Severability. A waiver of any right or remedy must be signed by the waiving party’s authorized representative in order to be effective and cannot be implied from conduct and shall not be deemed a waiver of any subsequent right or remedy. Any delay or failure to exercise any right of remedy shall not waive that right or remedy. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains valid and in effect.
17.8. Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees which shall still be due and payable but may be deferred until payment of fees is possible following the resolution of the force majeure event) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license, natural disaster, pandemic and or act of God.
16.9. Subcontractors. DeepConnect may use subcontractors or third-party service providers and permit them to exercise DeepConnect’s rights, but DeepConnect remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
17.9. Independent Contractors. The parties are independent contractors, not agents, partners or joint venturers, and nothing in this Agreement or any Order entered into pursuant to this Agreement is intended to or shall operate to create a partnership between the parties or authorize either party to act as agent for the other.
17.10. Export. Each party agrees to comply with all relevant U.S. and foreign export and import control Laws or regulations applicable to its performance under this Agreement. Each party represents and warrants that (a) it is not listed on any Sanctions Authority’s list of prohibited or restricted parties; (b) it is not subject to any sanctions or trade restrictions, or any other applicable economic sanctions or trade restrictions administered or enforced by a Sanctions Authority; and (c) it is not located in, does not operate in, and is not a national of a country that is subject to an embargo administered or enforced by a Sanctions Authority or that has been designated by the U.S. government as a “terrorist supporting” country. Customer agrees (a) not to access or use any of the Services in violation of any U.S. export embargo, prohibition or restriction, or any other applicable trade restrictions and (b) that it will not submit to any of the Services any information controlled under the U.S. International Traffic in Arms Regulations.
17.11. Open Source. The Software may incorporate third-party opensource software (“OSS”), as listed in the Documentation or by DeepConnect upon request. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement. Customer’s internal use of the unmodified Software as authorized in this Agreement will not require Customer to comply with the terms of the OSS licenses.
17.12. Insurance. During the Subscription Term, DeepConnect will carry industry standard insurance, (e.g. General Commercial Liability, Errors and Omissions (including Cyber), Worker’s Compensation), appropriate for the Services provided hereunder.
17.13. Government End-Users. This section is applicable to U.S. government Users only. Elements of the Services are commercial computer software. If the User or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of any of the Services or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The SaaS Service was developed fully at private expense. All other use is prohibited.
“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with a party
"Agreement" means this MSA together with all Orders, exhibits, Policies.
“Customer Content” means any Contacts, Accounts, data, content, or materials that Customer (including its Users) submits to or creates within the SaaS Services including from Third-Party Platforms.
“Customer Materials” means materials, systems, and other resources that Customer provides to DeepConnect in connection with Technical Services.
“Documentation” means DeepConnect’s usage guidelines and standard technical documentation for the Service, the current version of which is at app.gowarm.ai
“High-Risk Activities” means activities where use or failure of the Services could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.
“Laws” means all local, state, federal and international laws, regulations, and conventions, including those related to data privacy and data transfer, international communications, and export of technical or personal data applicable to DeepConnect and Customer in their respective use and provision of the Services.
“Order” means an order for access to and/or provision of Services that references this MSA, that is executed by the Customer and accepted by DeepConnect.
“Ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
“Policies” means the Privacy Policy, Security Policy, Support Policy, and SLA.
“Privacy Policy” means the Privacy Policy, the current version of which is at Privacy Policy (Annexure II).
“Prohibited Data” means any (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation, (b) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”), (c) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (PCI DSS), (d) other information subject to privacy regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or related rules or regulations, I social security numbers, driver’s license numbers or other government ID numbers or (f) any medical data, financial data, data about minors, or other sensitive personal data protected under Laws.
“Reseller” means a third party that (i) has a valid agreement with DeepConnect governing its provision of reseller services (including without limitation billing agent services) to DeepConnect and (ii) has been authorized by DeepConnect to resell (or act as billing agent with regard to) the Services.
“SaaS Service” means DeepConnect’s proprietary cloud service, as identified in the relevant Order and as modified from time to time by DeepConnect. The SaaS Service includes the Software and Documentation but does not include any Technical Services deliverables or Third-Party Platforms
"Sanctions Authority" means the United States, United Kingdom, and European Union and their respective governmental, judicial, or regulatory institutions, agencies, departments, and authorities.
"Security Policy” means the DeepConnect Security Policy, the current version of which is available at Security Policy (Annexure II).
“Services” means the SaaS Services, the Technical Services, and any other services DeepConnect may provide to Customer under this Agreement.
“SLA” means the DeepConnect Service Level Agreement, the current version of which is at SLA (Annexure I).
“Software” means any DeepConnect software, scripts, apps, or other code provided to Customer by DeepConnect for use with the Service.
“Source Owner” means the User who has uploaded the Customer Content, Contacts and Accounts to GoWarm. If GoWarm discovers Contacts, Accounts and uploads them to GoWarm platform those Contacts, Accounts will be deemed to be owned by the Customer or by any User with Administrator privileges.
“Subscription Term” means the term for Customer’s use of the SaaS Service as identified in an Order.
“Support” means support for the SaaS Service provided to Customer as described in the Support Policy. Customer will receive support at no additional cost. If Customer elects to purchase enhanced or premium support, this will be identified in the applicable Order.
“Support Policy” means the DeepConnect Support Policy, the current version of which is at SLA (Annexure I).
“Technical Services” means any training, enablement or other technical services provided by DeepConnect related to the SaaS Service, as identified in an Order.
“Third-Party Platform” means any platform, add-on, service, product, app, or integration not provided by DeepConnect that Customer elects to integrate or enable for use with the Services.
"Third-Party Services" means any services or content (including data, information, applications and other products’ services) provided by a third-party that may be displayed, included or made available by the Application.
“Usage Data” means data relating to Customer’s use and consumption of the Services including DeepConnect’s technical logs, data, and learnings about Customer’s use of the Services, but excluding Customer Content, Contacts and Accounts.
“User” means any individual aged 16 or older who Customer permits or invites to access and use the SaaS Service as further described in the Documentation, which may include Customer’s and its Affiliates’ employees, consultants, contractors or other third parties
“Workspace” means an online workspace or other element of the SaaS Service displaying Customer Content, Contacts and Accounts.
By accepting this Agreement electronically — including by clicking “I Accept” (or a similar control), by registering for or creating an account, or by accessing or using the SaaS Service — Customer acknowledges that it has read, understood, and agrees to be bound by this Agreement as of the Effective Date. A handwritten or wet-ink signature is not required for this Agreement to be valid, binding, and enforceable, and Customer agrees not to contest the validity or enforceability of this Agreement on the basis that it was accepted electronically.
Date: ________________________ Date: ________________________
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ANNEXURE I
Service Level Agreement (SLA)
DeepConnect Technologies Inc (“DeepConnect”) Service Level Agreement ("SLA") is issued under and forms part of the Master Subscription Agreement or other DeepConnect agreement which references this policy and any capitalized terms not defined herein shall have the meanings ascribed to them in such DeepConnect agreement. With notice to Customer, DeepConnect may modify this SLA to reflect new features or changing practices, but the modifications will not materially decrease DeepConnect's overall obligations during a Subscription Term.
1. Service Availability.
DeepConnect will use commercially reasonable efforts to provide the Service to Customer at the Availability Standard set forth below:
a. "Availability Standard" means uptime availability of the Service at a level of at least 99.5% availability measured on a monthly basis, excluding scheduled maintenance time. The Service will be deemed unavailable if the Customer is unable to access the Service ("Disruption"). Notwithstanding the foregoing, it will not be a disruption if the Service is not available because of (i) general internet problems or outages caused by power supply carriers; (ii) malfunction of equipment, systems software, network connections, or other infrastructure not owned or operated by DeepConnect; (iii) force majeure events or other factors outside the reasonable control of DeepConnect or (iv) scheduled service or maintenance or reasonable emergency maintenance.
2. Service Credits
a. If DeepConnect fails to meet the Availability Standard in a particular month and Customer makes a request for service credits within 30 days after the end of such month, Customer will be entitled to a credit based on the monthly portion of the annual fees due for the affected Service in such month ("Service Credit"). The Service Credit is calculated as follows:
| Service Availability Percentage | Service Credit (% of monthly fees) |
| 99.5% or greater | No Credit |
| 99.00% to 99.5% | 5% |
| 98.5% to 99.00% | 10% |
| 98.00% to 98.5% | 15% |
| 97.5% to 98.00% | 20% |
| Less than 97.5% | 30% |
b. DeepConnect will apply each Service Credit to Customer's next invoice, provided that Customer's account is fully paid up, without any outstanding payment issues or disputes. Customer will not receive any refunds for any unused Service Credits.
3. Exclusive Remedy
Service Credits constitute liquidated damages and are not a penalty. Service Credits are Customer's sole and exclusive remedy, and DeepConnect's sole and exclusive liability, for DeepConnect’s failure to meet the Availability Standard.
ANNEXURE II
Data Protection Policy/ Privacy Policy
Scope
This policy applies to all personal and sensitive data collected, processed, and stored by DeepConnect Technologies Inc (DeepConnect), where DeepConnect acts as a controller, in the course of providing SaaS services.
The applicable privacy policy is available here - https://www.gowarm.ai/privacy-policy