Terms of Service
This BUSINESS SERVICES AND SOFTWARE SUBSCRIPTION AGREEMENT ("Agreement") is entered into by and between Kaizen Diversified Technologies Pvt Ltd, and ("SaaS Customer")
Whereas, KAIZENDT offers certain connectivity and transformation services and is an Application Services Provider, delivering a hosted software application, transaction services, and other information management services to its clients using the software as a service business model; and
Whereas, SaaS Customer wishes to contract with KAIZENDT to provide certain services and have access to certain web based software applications via the Internet or as otherwise provided and described in Exhibit A of this agreement; and
Software as a Service - Subscription Agreement (Rev. 48 – EDU360 Base)
Now therefore, in consideration of mutual covenants and promises herein contained, the parties hereto agree as follows:
1. KAIZENDT Services
- Services. KAIZENDT shall provide logical access to the "Services" and "Supported Applications" described in Exhibit A of this Agreement. SaaS Customer may access in the manner described herein, the Supported Applications located at any data or connectivity center of KAIZENDT. The Services and Supported Applications may be modified only by mutual written agreement between KAIZENDT and SaaS Customer. Changes or additions to work performed pursuant to Exhibit A or Exhibit B may require changes in the resources provided by KAIZENDT and may result in additional costs and or charges to SaaS Customer. KAIZENDT will provide access to the named application and operational support services to SaaS Customer only for the software application programs (the "Supported Applications") specifically identified on Exhibit A.
- License. In accordance with this Agreement, KAIZENDT hereby provides SaaS Customer a restricted, non-transferable, and non-exclusive license to use the Supported Applications for the sole purpose of supporting the internal operations of SaaS Customer's business. SaaS Customer may use the Supported Applications only to process SaaS Customer's own data and that of SaaS Customer's Clients' claims and insurance policy information. SaaS Customer may not use the Supported Applications in a resale capacity, to process and/or analyze the data of a third party as a service bureau unless approved in advance and in writing by KAIZENDT.
- Connectivity Solutions. SaaS Customer will utilize the required equipment, including but not limited to, desktop personal computers, notebook computers, networks, servers, and printers, as well as any required and commercially available desktop application software and operating system software based on KAIZENDT's assessment and recommendations.
- Other Services. From time to time, KAIZENDT may perform consulting or other services ("Other Services") at the request of SaaS Customer. The terms and conditions under which Other Services are provided shall be governed by a separate written agreement between KAIZENDT and SaaS Customer
2. Invoicing and Payment Terms as Agreed to by the Parties of this Agreement
- Invoices. KAIZENDT will invoice SaaS Customer monthly or quarterly for the Services and Supported Applications provided to SaaS Customer at the applicable rates and amounts set forth in Exhibit B.
- Payment Terms; Interest. SaaS Customer will pay KAIZENDT all undisputed fees within 30 days of the invoice date. If SaaS Customer fails to pay the invoice by its due date, KAIZENDT may charge interest on the lesser of 1.5% or the maximum permissible rate per month on any undisputed outstanding balance and, upon SaaS Customers failure to pay the outstanding undisputed balances following the due date and subsequently within 10 days notice from KAIZENDT may suspend Services and Supported Applications until such outstanding balances are paid. Any disputes regarding fees shall be resolved in accordance with Section 8.
- Taxes. SaaS Customer will be responsible for the payment of all taxes associated with this Agreement (other than taxes based on KAIZENDT's net income), including but not limited to, personal property taxes, import taxes, taxes on telecommunications, information services, data processing services, or similar governmental charges that may be assessed by any jurisdiction, whether based on gross revenue or delivery of products and services. If KAIZENDT is required to pay such taxes directly, SaaS Customer shall, upon receipt of KAIZENDT's invoice, reimburse KAIZENDT for any amount that KAIZENDT has paid.
3. Visitations, Access, and Exclusivity
- Visitations. Upon at least two weeks' prior notice to KAIZENDT will allow SaaS Customer to annually visit KAIZENDT's facilities during normal business hours, subject to KAIZENDT's administrative and security procedures, to review KAIZENDT's operations as they relate to the Services provided under this Agreement.
4. Ownership of Software, Data, and Records.
- Right to Software. Except as set forth in Exhibit A, KAIZENDT represents and warrants that KAIZENDT, to the best of its knowledge, owns or has the right to use and license all the hardware and software components used to provide Services under this Agreement for the Supported Applications.
- Infringement Action. If SaaS Customer promptly notifies KAIZENDT in writing of a third party action against SaaS Customer that any Service or Supported Application infringes upon a United States registered patent or a United States registered copyright, KAIZENDT will defend such action at its expense and will pay any cost or damages that are finally awarded against SaaS Customer resulting from such action. SaaS Customer shall also provide KAIZENDT with its reasonable cooperation (at KAIZENDT's expense) and full authority to defend or settle the action. KAIZENDT will not pay any such damages, however, if the claim of infringement is caused by (i) SaaS Customer's misuse of the Services; (ii) SaaS Customer's failure to use corrections or enhancements made available by KAIZENDT;(iii) SaaS Customer's use of the Services in combination of or with any product or information not provided or authorized in writing by KAIZENDT; or (iv) information, direction, specification, or materials provided by SaaS Customer or any third party. If any Service or Supported Application is, or in KAIZENDT's opinion is likely to be, held to be infringing, KAIZENDT shall at its own expense and option either (a) procure the right for SaaS Customer to continue using it, (b) replace it with a non-infringing equivalent, (c) modify it to make it non-infringing, or (d) terminate the Services. The foregoing remedies constitute SaaS Customer's sole and exclusive remedies and KAIZENDT's entire liability with respect to infringement.
- SaaS Customer's Use of Software. SaaS Customer acknowledges and understands that KAIZENDT may provide to SaaS Customer (i) KAIZENDT owned software, and/or (ii) software applications owned by third parties which KAIZENDT uses under license agreements with such third parties. SaaS Customer acknowledges and agrees that (i) title to all such KAIZENDT software and software applications remains with and is subject to the proprietary rights KAIZENDT or its third party vendors, and (ii) such software and software applications may contain trade secrets and other valuable proprietary information of KAIZENDT or its third party vendors. SaaS Customer may not grant any sublicenses to or otherwise make such software, such software applications, the Supported Applications, or the documentation available to any other person, entity, or business. SaaS Customer agrees that SaaS Customer will not reverse assemble, reverse compile, reserve engineer, modify, reproduce, distribute, prepare derivative works based on, or demonstrate such software, such software applications, or the Supported Applications in whole or in part.
- Data and Records. KAIZENDT understands and agrees that KAIZENDT receives no ownership rights in the materials, data, or records furnished by SaaS Customer ("SaaS Customer's Data") and that SaaS Customer receives no ownership rights to the Supported Applications. SaaS Customer represents and warrants that SaaS Customer and those providing information to SaaS Customer have the right to transmit to KAIZENDT and receive any materials, data, or records from KAIZENDT, that are required to enable KAIZENDT to perform its obligations under this Agreement. Except as set forth herein or as specifically authorized by SaaS Customer in writing, KAIZENDT will not disclose SaaS Customer's Data to a third party or make any other use of SaaS Customer's Data.
- Use of Aggregate Data. SaaS Customer acknowledges and agrees that KAIZENDT may use
aggregate data derived from SaaS Customer's use of the Services hereunder provided that KAIZENDT has completed a de-identification process on such data. KAIZENDT may use in its marketing and advertising the total number of users, total number of stored claim records, total transaction volumes, and other aggregate statistics to attract new customers. SaaS Customer further represents and warrants that the use of such data by KAIZENDT will not infringe upon any person’s or entity’s intellectual property rights or other proprietary interests or invade any person’s or entity’s privacy. Further, the use of such data by KAIZENDT will not result in any violation of applicable law or any agreement to which SaaS Customer is a party or by which SaaS Customer is bound. This section 4(e) shall survive the termination of this Agreement with respect to data transmitted hereunder prior to the date of termination.
5. Confidentiality, Publicity, and Marks
- Both KAIZENDT and SaaS Customer have made and will continue throughout the term of this Agreement to make available to the other party confidential and proprietary materials and information (“Proprietary Information”) All material and information will provided by one party to the other relating to the business, policies, procedures, customs and forms of providing party or any of its affiliates, including but not limited to Client’s Data as well as information previously divulged or delivered regarding the aforementioned subject matter, is hereby designated to be Proprietary Information. Except for confidential patient/claimant information included in SaaS Customer’s Data, the parties agree that the obligations set forth in section 5 of this Agreement do not apply to materials or information that: (i) already, or otherwise become, generally known by third parties as a result of no act or omission of the receiving party; (ii) subsequent to disclosure hereunder are lawfully received from a third party having the right to disseminate the information and without restriction or disclosure; (iii) are generally furnished to others by the disclosing party without restriction or disclosure; (iv) were already known by the receiving party prior to receiving them from the disclosing party and were not received from a third party in breach of that third party’s obligations of confidentiality; or (v) are independently developed by the receiving party without the use of Proprietary Information of the disclosing party.
- Each party shall maintain the confidentiality of the other’s Proprietary Information and will not disclose such Proprietary Information without the written consent of the other party, except in connection with providing Services in accordance with the Agreement or as otherwise permitted hereunder. Each party shall also keep confidential the terms of this Agreement and/or any exhibits attached hereto. However, KAIZENDT may disclose terms of this Agreement to Progress Software Corporation and/or its affiliates in accordance with partnership agreements that may exist between KAIZENDT and Progress Software Corporation.
- Neither of the parties’ obligations of confidentiality will prevent or prohibit parties from providing access to Proprietary Information upon request of a state or federal regulatory agency or authority as may be required by law authority, or judicial or administrative process. Notwithstanding the foregoing, in the event of any requested access to Proprietary Information by a regulatory authority, the one of the parties from whom the Proprietary Information is requested will provide notice to the other in a timely fashion to the allow the other party the opportunity to contest the release of its Proprietary Information to such regulatory authority.
- Security and Privacy. KAIZENDT will materially comply with all applicable law and regulations concerning security and privacy in KAIZENDT's performance of this Agreement.
- Publicity. Except as required by law, neither party shall make any press release, public statements, or disclosures regarding the terms, subject matter or collaboration of the parties to this Agreement, without prior written consent of the other party, which consent should not be unreasonably withheld. However, SaaS Customer agrees that KAIZENDT may make (during the term of this Agreement), orally or in writing, reference to the fact that SaaS Customer is a customer of KAIZENDT agrees that SaaS Customer may also (during the term of this Agreement) make reference, orally or in writing, that KAIZENDT is a service provider of SaaS Customer.
- Marks. Each party agrees not to display or use, in advertising or otherwise, any of the other party’s logos, trademarks, or service marks without the other party’s prior written consent, provided that such consent can be revoked at any time.
6. Warranty, Disclaimer of Warranty and Limitation of Liability
- Warranty. KAIZENDT shall not be responsible for any failure from any force majeure as set forth in Section 10 (g). KAIZENDT will not be responsible for any loss, damage, increase in costs or other expenses relating to conduct that is the responsibility of SaaS Customer.
- Year 2000. KAIZENDT represents that the software and hardware used by KAIZENDT in performing the Services have been designed to allow date data century recognition, calculations, which accommodate same century and multi-century formulae and date value, and date data entry of all values that reflect the century. KAIZENDT's obligation and SaaS Customer’s sole and exclusive remedy for a breach of this representation and warranty, except from force majeure events including without limitation SaaS Customer’s acts or omissions, shall be that KAIZENDT shall, at no cost to SaaS Customer, re-process SaaS Customer’s Data.
- Transmission of Data. KAIZENDT is not responsible for loss of data in transmission, improper transmission by SaaS Customer or failure by SaaS Customer or any third party to act on any communication transmission to or by SaaS Customer through KAIZENDT. In the event of improper transmission or loss of data in transmission, KAIZENDT will use KAIZENDT's commercially reasonable efforts to recreate such transmission at SaaS Customer’s expense.
- DISCLAIMER OF WARRANTIES. EXCEPT FOR WARRANTIES PROVIDED IN SECTIONS 4, 5, AND 6, KAIZENDT MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITIES AND FITNESS FOR A PARTICULAR PURPOSE, AS TO ANY MATTER WHATSOEVER, INCLUDING BUT NOT LIMITED TO THE HARDWARE, SUPPORTED APPLICATIONS, SOFTWARE PROVIDED BY KAIZENDT TO SaaS CUSTOMER, HARDWARE AND SOFTWARE USED BY SaaS CUSTOMER BUT NOT PROVIDED BY KAIZENDT, DOCUMENTATION, DATA, FILES, OUTPUT, SERVICES, OR OTHER MATTERS PRODUCED HEREUNDER.
- Limitations. Unless otherwise expressly provided herein, neither KAIZENDT nor any of its service providers, licensors, employees or agents warrant (i) that the Services provided hereunder will meet SaaS Customer’s requirements; (ii) that the operation of the Services will be uninterrupted or error free; or (iii) that the Services will have the capacity to meet demand beyond volumes specified in Exhibit A, if any. Except as set forth herein, KAIZENDT will not be responsible for any damages that SaaS Customer may suffer arising out of use, or inability to use, the Services. KAIZENDT will not be liable for unauthorized access to or alteration, theft, or destruction of SaaS Customer’s Data, unless such access, alteration, theft, or destruction is caused as a result of KAIZENDT's gross negligence or intentional misconduct. It is hereby acknowledged that it is SaaS Customer’s responsibility to validate for correctness all system output and reports. SaaS Customer hereby waives any damages occasioned by lost or corrupt data, incorrect reports, or incorrect data files resulting from a programming error, operator error, equipment or software malfunction, or from the use of third party software.
- EXCLUDED LIABILITIES. EXCEPT FOR DAMAGES ARISING FROM BREACHES OF SECTION 5, OR FOR CLAIMS FOR INDEMNIFICATION IN SECTION 7, IN NO EVENT WILL EITHER PARTIES LIABILITY UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE FORM OF ACTION, INCLUDE ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR CLAIMS FOR LOSS OF BUSINESS OR PROFITS, UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER LEGAL THEORY, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
- AGGREGATE LIABILITY. EXCEPT FOR DAMAGES ARISING FROM BREACHES OF SECTION 5, OR FOR CLAIMS FOR INDEMNIFICATION IN SECTION 7, EACH PARTIES AGGREGATE LIABILITY TO THE OTHER PARTY PURSUANT TO THIS AGREEMENT UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER LEGAL THEORY, REGARDLESS OF THE CAUSE OF ACTION WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY SaaS CUSTOMER IN THE 12 MONTHS PRIOR TO WHEN THE DAMAGES FIRST AROSE. PRIOR TO THE COMPLETION OF THE 12 MONTHS OF SERVICE UNDER THIS AGREEMENT, EACH PARTIES LIABILITY TO THE OTHER PARTY WILL NOT EXCEED AN AMOUNT EQUAL TO THE ACTUAL MONTHLY SERVICE FEES PAID BY CLIENT DURING SUCH PERIOD, EXCEPT FOR DAMAGES ARISING FROM BREACHES OF SECTION 5, OR FOR CLAIMS FOR INDEMNIFICATION IN SECTION 7(A).