Updated: March 1, 2023
1.1 “Affiliate” of a Party means any other person or entity that directly or indirectly: (a) Controls; (b) is Controlled by; or (c) is under common control with such Party. For these purposes, “Control” and its derivatives (such as Controls and Controlled) shall refer to (x) the possession, directly or indirectly, of the power to direct the management or policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise; or (y) the ownership, directly or indirectly, of at least fifty percent (50%) of the voting securities or other ownership interest of a person or entity. Affiliates of Profi include any of its corporate Affiliates which may be specified or otherwise assigned rights or obligations under this Agreement or any Order Form, addendum, exhibit, attachment or any amendment.
1.2 “Agreement” means this Software as a Service Agreement, and unless the context requires otherwise, includes all Order Forms, and any addendums, exhibits or attachments to any of the foregoing.
1.3 “Customer Materials” means any content, materials, data, including personal data, and information that the Customer provides in connection with the Services.
1.4 “Documentation” means any Proprietary Information (as defined in Section 6) or documentation made available to Customer by Profi for use with the provision of the Services.
1.5 “Intellectual Property Rights” means all intellectual property rights which may exist or be created under the laws of any jurisdiction anywhere in the world.
1.6 “Order Form” means each Profi ordering document signed by duly authorized representatives of both Parties which references this Agreement, identifies the Services ordered by Customer from Profi, sets forth the prices for the Services, and contains other applicable information terms and conditions.
1.7 “Professional Services” means configuration, training, and such other services as may be described in an Order Form.
1.8 “SLA” means Profi’s Service Level Agreement attached hereto as Exhibit A.
1.9 “Annual Period" means a period of twelve (12) months ending on the yearly anniversary of the Commencement Date.
1.10 “Monthly Period" means a period of one (1) calendar month beginning on the 1st day of the month and ending on the final day of the month.
2.1 Provision of Services. Profi will provide to Customer the Services pursuant to this Agreement and the relevant Order Form during the applicable Term (as defined in Section 10). Services will be provided pursuant to this Agreement and the specifications set forth in the applicable Order Form, and substantially in accordance with the specifications set forth in the SLA. If so specified on the applicable Order Form, the Services shall include Implementation Services, as set forth on Exhibit B hereto.
2.2 Technical Support. Subject to the terms hereof, Profi will provide Customer with reasonable technical support services in accordance with Profi’s standard practice.
2.3 Professional Services. Customer will make available to Profi certain of Customer personnel, business information, and other relevant information as reasonably required by Profi in the performance of any Professional Services hereunder or as specified in any applicable Order Form. Customer will ensure that competent personnel is available during normal working hours to provide information and other support to Profi while providing Professional Services. Customer acknowledges that the timeliness or provision of Professional Services may be dependent on such Customer’s personnel availability and cooperation. If applicable, while on the premises of the other Party for training or other services, each Party will take reasonable measures to have its personnel comply with the other Party’s reasonable rules and policies regarding safety, security, and conduct made known to such Party, and will at Customer’s request promptly remove from the project any of its personnel not following such rules and regulations.
2.4 Documentation. Subject to the terms and conditions of this Agreement, Profi hereby grants to Customer a non-exclusive, revocable, non-transferable, non-sublicensable license during the Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Customer’s authorized use of the Services. Customer will include on any copies it makes of the Documentation the copyright notices or proprietary legends contained within the same.
2.5 Reservation of Rights. Except as expressly granted in this Agreement, Profi does not grant to Customer any license or rights (by implication, estoppel, or otherwise) in the Services, Software (as defined in Section 3.2), or Documentation. All other rights are expressly reserved by Profi. Notwithstanding anything herein to the contrary, all rights in and to the Software, Services, and Documentation are licensed and not sold or transferred and Profi retains ownership of the Software even after the installation of the Software on the Customer’s servers or other relevant devices. Customer will include on any copies it makes of the Software and Documentation the copyright notices or proprietary legends contained within the same.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Profi’s Responsibilities. Profi will use its commercially reasonable efforts to provide the Services to Customer during the Term in accordance with this Agreement.
3.2 Customer Restrictions. Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (b) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Profi or authorized within the Services); (c) use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third party or otherwise offer access to the Services or the Software to a third party; (d) remove any proprietary notices or labels, use, or permit the use of, the Services except as expressly authorized under this Agreement or the Documentation; (e) interfere with or disrupt the integrity or performance of the Services or the Software or any third-party application or third-party data or content contained therein; (f) copy or reproduce the Services, Software, or Documentation except to the extent necessary to exercise the licensed use of the same hereunder; (g) attempt to probe, scan or test the vulnerability of the Services or Software, breach the security or authentication measures of the Software or Services without proper authorization or willfully render any part of the Services or the Software unusable; (h) use or access the Services or Software to develop a competitive product or service or engage in competitive analysis or benchmarking; or (i) take any other action with respect to the Services or the Software not expressly permitted under this Agreement or the Documentation.
3.3 Customer’s Responsibilities. Customer will (a) be responsible for all use of the Services under its account; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Profi promptly of any such unauthorized access or use; and (c) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Services. Customer will be solely responsible for its failure to maintain such equipment, software, and services, and Profi will have no liability for such failure.
3.4 Privacy and Data Protection. In the event Customer or any Customer Materials are sourced from the European Union (“EU”) or the Services otherwise involve special privacy or data protection provisions (whether applicable in the EU or otherwise), the Parties may agree to a Data Processing Addendum with additional provisions relating to privacy and data protection, which shall be attached to this Agreement or Order Form and become a part of this Agreement.
4. FEES AND PAYMENT
4.1 Fees. Customer shall pay all fees specified in all Order Forms hereunder (“Fees”) for the Services. Except as otherwise specified herein or in an Order Form, (a) Fees will be quoted and paid in United States dollars; and (b) payment obligations are non-cancelable and Fees paid are non-refundable. Profi reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Service Term (as defined in the applicable Order Form) or then-current Renewal Service Term (as defined in Section 10), upon thirty (30) days’ prior notice to Customer (which may be sent by email). If so specified on an Order Form, the Services provided may include Implementation Services, and the applicable Fees, specified in such Order Form, shall cover the respective Implementation Services as well.
4.2 Invoicing and Payment. If a purchase order is required by Customer, Customer will provide Profi with a valid purchase order within five (5) days from the execution of the applicable Order Form. Any terms and conditions on any purchase order shall not be deemed a part of this Agreement or otherwise binding on Profi. Profi will invoice Customer in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, Fees are due net thirty (30) days from Customer’s receipt of the invoice. Customer is responsible for providing Profi with complete, accurate and up to date billing and contact information.
4.3 Late Fees. If any Fees are not received from Customer by the due date, unpaid amounts are subject to a finance charge of one percent (1%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
4.4 Suspension of Services. Except with respect to any Fees disputed in good faith by Customer, if any Fees for the Services or Professional Services are thirty (30) or more days overdue, Profi may, without limiting Profi’s other rights and remedies, suspend provision of the Services (and the Professional Services, if applicable) until such amounts are paid in full.
4.5 Payment Disputes. If an invoiced amount is disputed in good faith by Customer, Customer must notify Profi in writing and provide sufficiently detailed support of any invoice dispute within ten (10) business days of Customer’s receipt of invoice. If Customer fails to do so, Customer is deemed to have waived its right to dispute that invoice and the invoice will be deemed accurate and valid. Nothing in this section shall be deemed to waive Customer’s obligation to pay any undisputed amounts in accordance with Section 4.2 hereof.
4.6 Taxes. The Fees are exclusive of all taxes, levies, duties, or similar governmental assessments of any nature (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer purchases hereunder except for those based on Profi’s net income, property, or employee withholdings. Taxes shall not be deducted from the payments to Profi, except as required by law, in which case the amount payable shall be increased as necessary, so that after making all required deductions and withholdings, Profi receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made.
4.7 Audit Rights. Profi shall have the right to audit Customer’s compliance with this Agreement at any time during the Term. Customer shall cooperate following any reasonable request by Profi in connection with such audit. If Profi determines that Customer has allowed access to the Services other than as permitted under this Agreement or any Order Form or has otherwise violated any applicable terms hereof or thereof, and as a result, additional Fees are owed to Profi, Profi shall invoice Customer for such discrepancies and such Fees shall be payable pursuant to the terms of this Agreement. The results of any audit shall not limit any other rights or remedies of Profi.
5. PROPRIETARY RIGHTS
5.1 Customer Ownership. Customer shall own all right, title, and interest in and to the Customer Materials, as well as any data that is based on or derived from the Customer Materials and provided to Customer as part of the Services. Customer hereby grants Profi a non-exclusive, non-transferable, royalty-free, non-sublicensable (except as needed for the provision of Services or as set forth herein) worldwide right to access and use Customer Materials solely to provide the Services to Customer at Customer’s request.
5.2 Profi Ownership. Profi shall own and retain all right, title, and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto; (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support; and (c) all Intellectual Property Rights related to any of the foregoing.
5.3 Data Analysis. Notwithstanding anything to the contrary, Profi shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Materials and data derived therefrom), and Profi will be free (during and after the Term hereof) to (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Profi offerings; and (b) disclose such data solely in aggregate or another de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
5.4 Feedback. Customer may from time to time provide Profi suggestions or comments for enhancements or improvements, new features or functionality, or other feedback (“Feedback”) with respect to the Services. Profi will have full discretion to determine whether or not to proceed with the development of any requested enhancements, improvements, new features, or functionality. Profi will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
6.1 Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Profi includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public Customer Materials. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information; and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document: (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without the use of any Proprietary Information of the Disclosing Party; or (e) is required to be disclosed by law (in which case the Receiving Party will provide the Disclosing Party with prior written notification thereof, will provide the Disclosing Party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). In the event of an actual or threatened breach of the provisions of this Section or the licenses contained herein, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
7. WARRANTIES AND DISCLAIMERS
7.1 Profi Service Warranties. Profi warrants that (a) the Services will be provided substantially in accordance with the Documentation made available to Customer; (b) the functionality of the Services will not be materially decreased during the Term, and (c) the Professional Services and Implementation Services (if any) will be performed in a professional and workmanlike manner. For any breach of the foregoing warranties, Customer’s exclusive remedy will be as provided in Section 8.3. Notwithstanding the foregoing, if any Order Form has a Term of more than twelve (12) months, in the event Profi or any of its licensors determine to materially change or cease offering any material element of the Services, Profi may effect such change or cessation following reasonable notice thereof to Customer and the relevant Order Form shall be amended to reflect such change.
7.2 Profi Software Warranties. Profi warrants that during the sixty (60) day period commencing on the date set out in the Order Form, the Software will perform substantially in accordance with the Documentation. In the event of a breach of the foregoing warranty, as Customer’s sole and exclusive remedy, Profi shall, at its sole expense and discretion, replace the Software with Software conforming to the foregoing warranty, or use reasonable efforts to modify the Software so that it performs substantially in accordance with the Documentation.
7.3 Mutual Warranties. Each Party represents and warrants that (a) it has the legal power to enter into this Agreement, and (b) it will comply with all applicable laws with respect to its rights and obligations pursuant to this Agreement.
7.4 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PROFI MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT ORITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.1 Indemnification by Profi. Profi will defend, indemnify and hold harmless Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the provision of the Services as permitted hereunder infringes or misappropriate the intellectual property rights of a third party, provided that Customer (a) promptly gives Profi written notice of the Claim; (b) gives Profi sole control of the defense and settlement of the Claim (provided that Profi may not settle any Claim without Customer’s written approval, which will not be unreasonably withheld or delayed unless the settlement unconditionally releases Customer of all liability); and (c) provides to Profi all reasonable assistance, at Profi’s expense. If the use of the Services by Customer has become, or in Profi’s opinion is likely to become, the subject of any claim of infringement, Profi may at its option and expense (x) procure for Customer the right to continue using the Services as set forth hereunder; (y) replace or modify the Services to make it non-infringing (with comparable functionality); or (z) if the options in clauses (x) or (y) are not reasonably practicable, terminate this Agreement and provide a pro-rata refund of any prepaid fees corresponding to the terminated portion of the applicable Service Term. Profi has no liability or obligation with respect to any Claim if it arises from (i) Customer Materials; (ii) unauthorized modification or use of the Services or failure to install updates provided or recommended by Profi; (iii) the combination, operation or use of the Services with other applications, portions of applications, product(s) or services where the Services would not by themselves be infringing; or (iv) otherwise relating to Customer’s acts or omissions not in accordance with, or in breach of, the terms of this Agreement.
8.2 Indemnification by Customer. Customer will defend, indemnify and hold harmless Profi against any Claim made or brought against Profi by a third party (a) relating to or arising from Customer’s use of the Services in violation of this Agreement; or (b) relating to or arising from Profi’s permitted use of Customer Materials or Customer’s breach of any licenses granted to it pursuant to this Agreement; provided, that Profi (i) promptly gives Customer written notice of the Claim; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim without Profi’s written approval, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases Profi of all liability); and (iii) provides to Customer all reasonable assistance, at Customer’s expense.
8.3 Exclusive Remedy. This Section 8 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Section 8.
9. LIMITATION OF LIABILITY
9.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, PROFI AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR LOST CONTENT, EVEN IF A REPRESENTATIVE OF PROFI HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
10. TERM AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the Effective Date and will remain in effect until the earlier of (a) the expiration or termination of all Order Forms under this Agreement or (b) the termination of this Agreement in accordance with this Section (the “Term”). Upon termination of this Agreement for any reason, all rights and subscriptions granted to Customer including all Order Forms will immediately terminate and Customer will cease using the Services and will uninstall the Software. For the avoidance of doubt, upon the termination of any Order Form, the Services provided pursuant to such Order Form shall cease and Customer shall stop using such Services and shall uninstall the Software.
10.2 Automatic Renewal. Subscriptions for the Services commence on the Order Date specified in the applicable Order Form and continue for the Service Term specified therein unless otherwise terminated. Except as otherwise specified herein or in the applicable Order Form, all subscriptions will automatically renew for additional periods equal to the Service Term set out in the Order Form (each a “Renewal Service Term”) at the list price in effect at the time of renewal (which may not exceed the list price for the previous Service Term by more than five percent (5%)), unless either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the end of the applicable Term or Renewal Service Term.
10.3 Termination for Cause. A Party may terminate this Agreement or any applicable Order Form for a cause: (a) upon thirty (30) days written notice to the other Party of a material breach (including details sufficient to identify the material breach) if such breach remains uncured at the expiration of such period; (b) immediately for material violations of confidentiality obligations; or (c) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4 Survival. Upon termination of this Agreement, all licenses and other rights and obligations will immediately terminate except that Sections 2.5, 3.2, 4, 5, 6, 7, 8, 9, 10, and 12 will survive indefinitely.
10.5 Refund or Payment upon Termination. Upon any termination for cause by Customer, Profi will refund Customer a pro-rata portion of any prepaid Fees that cover the remainder of the Term after the effective date of termination and a pro-rata portion of any prepaid Fees that cover Professional Services that have not been delivered as of the effective date of termination. Upon any termination for cause by Profi, Customer will pay any unpaid Fees covering the remainder of the Term of all subscriptions under the applicable Order Forms after the effective date of termination and for any Professional Services provided up to the date of termination. In no event will any termination relieve Customer of the obligation to pay any Fees payable to Profi for the period prior to the effective date of termination.
Standard Service Level Agreement
This SLA is an exhibit to the Software as a Service Agreement between Profi and Customer, dated as of the Effective Date of this Agreement. Capitalized terms not otherwise defined herein will have the meaning ascribed to them in the Agreement.
1. DEFINITIONS. For the purposes of this Exhibit A, the following definitions shall apply:
1.1 “Availability” or “Available” means that the Service is available for use and properly functioning for use in accordance with this Agreement.
1.2 “Downtime” means the total number of minutes in a given month that the Service is not available.
1.3 “Scheduled Maintenance” means the total number of minutes in a given month for a planned, defined, and scheduled period of time during which Profi performs routine maintenance on the Service.
2. UPTIME REQUIREMENT; RESPONSE TIME REQUIREMENT.
2.1 Uptime Requirement. Profi will make commercially reasonable efforts to ensure that the Service will be available at least 99.9% of the time (“Uptime Requirement”) as measured over each calendar month during the Term, excluding holidays and weekends. The following shall be excluded from any calculation to determine whether Profi has complied with the Uptime Requirement: (a) Scheduled Maintenance; (b) Downtime resulting from any acts or omissions by Customer that are not in accordance with this Agreement, including without limitation, any negligence, willful misconduct or use of the Service in breach of this Agreement; (c) delays or outages caused by any third-party platforms, connections, or utilities; (d) any restrictions imposed by any such third party platforms, connections or utilities; and (v) Downtime resulting from a force majeure, as set forth in Section 12.4 of the Agreement.
3. REMEDIES. If Profi fails to satisfy the Uptime Requirement for a consecutive period lasting longer than one hour (“Incident”), upon Customer’s Notice (as defined below), Customer shall be entitled to a credit of five percent (5%) of the applicable month’s Fees, provided that no more than one (1) such credit will accrue per day. In order to receive such credit, Customer must notify Profi in writing within 24 hours from the time of the Incident (“Notice”), and failure to provide notice will forfeit the right to receive credit. Such credits may not be redeemed for cash and shall not, in any event, be cumulative beyond a total of credits for one (1) week of Fees in any one (1) calendar month. The remedy provided for in this SLA constitutes the Customer’s sole remedy with respect to Profi’s failure (if any) to satisfy the Uptime Requirement.
Statement of Work
This SOW is an exhibit to the Software as a Service Agreement between Profi and Customer, dated as of of the Effective Date of this Agreement. Capitalized terms not otherwise defined herein will have the meaning ascribed to them in the Agreement.
1. IMPLEMENTATION SERVICES & EXCLUSIONS
1.1 Company Duties. Profi will make commercially reasonable efforts to ensure that Customer is able to complete implementation by supporting completion of the below implementation milestones:
1.1.1 Customer training via webinar.
1.1.2 Customer Software configuration and setup.
1.1.3 Customer user acceptance testing (“UAT”) and validation.
1.1.4 Software Go-Live.
1.2 Exclusions. Unless otherwise provided for in the Agreement, this Exhibit B, or the applicable Order Form, the below Services are excluded from Implementation Services:
1.2.1 Content loading and migration.
1.2.2 Data entry and migration.
1.2.3 Language localization.
1.2.4 Software development feature requests.
1.2.5 Software customization requests.
1.2.6 User experience enhancements.
1.2.7 Other commercially unreasonable services requests.