Saas Agreement

TERMS OF SERVICE

THIS SOFTWARE AS A SERVICE AGREEMENT (this “Agreement”) is made by and between CourtAvenue, Inc., a Delaware corporation (“Provider”) and the individual or entity executing this Agreement (“Customer”) (Provider and Customer each, a “Party” and collectively, the “Parties”). This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”). Customer’s use of and Provider’s provision of Provider’s SaaS (as defined below in Section 1.14) are governed by this Agreement, as are Customer’s authorizations to grant its own customers use of the SaaS.

For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

Definitions. As used herein:

“Customer Data” means (i) any electronic data, customer data, information, or material that Customer provides, uploads, or submits to Provider in connection with this Agreement, and (ii) any electronic data, customer data, information, or material generated from or in connection with Customer’s use of the SaaS.
“Customer Marks” shall mean the trademarks, service marks, copyrights, intellectual property, symbols, logos, emblems, decals, designs, colors, likenesses, or other visual representations of Customer, as such trademarks and other marks may be modified by Customer from time to time.
“Customer Training Data” means any data or information provided by Customer or a Visitor to Provider as part of testing and development of Genjo.ai or any Deliverables.
“Customization Services” means such Provider services as are set forth in the applicable Order Form.
“Deliverables” means and any software or other deliverable created pursuant to Customization Services, including any integration of Genjo.ai with Customer’s Website.
“Existing Materials” shall mean all software relating to Genjo.ai produced by Provider prior to the Effective Date.
“Fees” shall mean the fees payable pursuant to Section 3 below and an applicable Order Form.
“Genjo.ai” means Provider’s software as a service, which is licensed to Customer pursuant to this Agreement and integrated into Customer’s Website as part of the Deliverables pursuant to the Customization Services.
“Go-Live” means Customer’s Acceptance of the final Deliverable pursuant to the applicable Order Form.
“Input Data” means any data or information provided by a Visitor, whether through Customer or Customer’s Website.
“Order Form” shall mean a written document executed by the Parties setting forth the Customization Services, Specifications, Deliverables, Term, Fees, and any other applicable terms and conditions applicable to Customer’s access and use of the SaaS. Each executed Order Form is hereby incorporated into this Agreement in its entirety by this reference. An Order Form will take precedence over any other provision of this Agreement, provided that any conflict or inconsistency in an Order Form with any other provision of this Agreement will only apply to that specific Order Form.
“Output Data” means all data and information created using Genjo.ai, as integrated into any Deliverables, whether through the use of Input Data, Customer Training Data, or Provider Training Data.
“Provider Training Data” means any data or information owned or licensed by Vendor used as part of the testing or development of Genjo.ai or any Deliverables.
“SaaS” means Genjo.ai together with any Deliverables licensed to Customer and integrated with Customer’s Website.
“Specifications” means (a) for Genjo.ai, Provider’s standard specifications; (b) for each Deliverable, such specifications and requirements as listed on the applicable Order Form; and (c) for the SaaS, after Go-Live, such specifications and requirements as listed on the applicable Order Form.
“Upgrade” means a new version, update, or upgrade of Genjo.ai.
“Visitor” shall mean (i) any person who uses Customer’s Website, including, without limitation, any person who inputs information into the SaaS through Customer’s Website, or (ii) Customer’s clients and customers.
“Website” means Customer’s website currently in existence as of the Effective Date and as may be updated or customized pursuant to the Customization Services.

License & Customization Services.

License. Provider hereby grants Customer a limited, non-exclusive and non-transferable license, without right of sublicense, during the Term to display and use the SaaS solely as part of the Website and only as integrated by Provider as part of the Customization Services.

Restrictions on Use. The SaaS created or transferred pursuant to this Agreement is licensed, not sold, and Customer receives no title to or ownership of the SaaS. Furthermore, Customer receives no rights in or to the SaaS other than those specifically granted in Section 2.1 above or otherwise in this Agreement. Without limiting the generality of the foregoing, Customer shall not: (a) modify, create derivative works from, or distribute the SaaS; (b) publicly display, or publicly perform the SaaS, other than on Customer’s Website as permitted in Section 2.1 above; (c) sublicense or otherwise transfer any of the rights granted in Section 2.1; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the SaaS; or (e) use the SaaS for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software, including without limitation as software-as-a-service.

Customization Services.

1. 1. Provision of Customization Services. Provider shall provide the Customization Services, and Customer shall provide such assistance and cooperation (i) as are necessary or convenient to facilitate the Customization Services set forth in the applicable Order Form, and (ii) as are called for in the applicable Order Form.
  2. Deliverables.
    1. Acceptance & Rejection. Each Deliverable, and the SaaS itself upon incorporation of the final Deliverable, will be considered accepted (“Acceptance”) (i) when Customer provides Provider written notice of acceptance or (ii) ten (10) days after delivery, if Customer has not first provided Provider with written notice of rejection. Customer may reject a Deliverable or the final SaaS only if it materially deviates from the Specifications and only via written notice setting forth the nature of such deviation. In case of rejection, Provider shall correct the deviation and redeliver the Deliverable within thirty (30) days. Redelivery pursuant to the previous sentence will constitute another delivery, and the Parties shall again follow the acceptance procedures in this Section 3.2. This Section 3.2(a) shall be Customer’s exclusive remedy for Provider’s failure deliver any Deliverables in accordance with the Specifications.
    2. Incorporation of Deliverables. Upon Acceptance, each Deliverable will constitute an element of the SaaS and will thereafter be subject to this Agreement’s terms regarding the SaaS, including, without limitation, license, warranty, and indemnification terms.

Fees and Payment.

Fees. Customer shall pay and deliver to Provider the Fees as set forth in the applicable Order Form.

Invoices. Payment against all invoices will be due within thirty (30) days of issuance by Provider to Customer.

Late Payments. If Customer fails to pay the Fees by the due date specified on the invoice, Provider shall be entitled to interest from the day on which the Fees became due. Both parties agree that the rate of interest on overdue invoices shall be 1.5% per month, or the maximum amount allowable by applicable law, whichever is greater.

Taxes. Customer will be responsible for, and will promptly pay or reimburse Provider for, the payment of all sales, use, excise, value-added, or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of Provider that is in accordance with the direction or request of Customer) that are based on or with respect to any services or goods provided by Provider to Customer, or the amounts payable to Provider therefore.

Intellectual Property Rights; Ownership.

Customer agrees and acknowledges that Provider is, and will be, the sole and exclusive owner of all right, title, and interest in and to Genjo.ai, Deliverables, and the SaaS related thereto, including all Intellectual Property Rights, performed and delivered under each such applicable Order Form. None of Genjo.ai, any Deliverables, nor the Customization Services related to the SaaS will be considered “works made for hire” as such term is defined in the United States Copyright Act of 1976 (as amended). To the extent that any of the SaaS or Deliverables are deemed to be “works made for hire,” Customer irrevocably assigns, and shall and does hereby irrevocably waive, to the extent permitted by applicable Laws, all claims it may have in any jurisdiction to any Intellectual Property Rights related thereto or to any so-called “moral rights” or rights of droit moral with respect to such SaaS or Deliverables.
Following request by Provider, Customer shall promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as necessary to assist Provider to prosecute, register, perfect, or record its rights in or to any SaaS or Deliverables.
Provider acknowledges that Customer claims ownership of the Customer Input Data, Customer Training Data, and Output Data, and this Agreement does not transfer to Provider any title or other ownership rights in or to Customer Input Data, Customer Training Data, or Output Data. Provider recognizes and agrees that: (a) the Customer Input Data and the Customer Training Data is Customer’s valuable property; (b) the Customer Input Data and the Customer Training Data is an original compilation pursuant to the copyright law of the United States and other jurisdictions; and (c) Customer has dedicated substantial resources to collecting, managing, and compiling the Customer Input Data and the Customer Training Data. Customer hereby grants Provider a perpetual, irrevocable, worldwide, royalty-free license to reproduce, modify, and otherwise access and use Customer Input Data, Customer Training Data, and Output Data to train and otherwise modify Genjo.ai as part of the SaaS hereunder or for other Provider products or services, with the right to sublicense any such right to Provider’s contractors supporting such training or modification. Provider has no obligation to report on use of Customer Input Data, Customer Training Data, or Output Data. This Agreement does not transfer to Customer any ownership of any Provider Training Data or any right to access or use Provider Training Data.

Confidential Information.

1. 1. Confidential Information Defined. “Confidential Information” refers to the following information one Party to this Agreement (“Discloser”) discloses to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure; (c) any source code disclosed by Provider and any names of actual or potential customers disclosed by Customer, whether or not marked as confidential; and (d) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser. Recipient is on notice that Confidential Information may include Discloser’s valuable trade secrets.
  2. Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and is subject to a written agreement with Recipient with nondisclosure terms no less restrictive than those of this Section 6.2; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information to the extent required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest, limit, or protect such required disclosure, at Discloser’s expense.
  3. Injunction. Recipient agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in Section 6.2; (b) it would be difficult to determine the damages resulting from its breach of Section 6.2 and such breach would cause irreparable harm to Discloser; and (c) a grant of injunctive relieve provides the best remedy for any such breach, without any requirement that Discloser prove actual damage or post a bond or other security. Recipient waives any opposition to such injunctive relief or any right to such proof, bond, or other security. (This Section 6.3 does not limit either Party’s right to injunctive relief for breaches not listed.)
  4. Termination & Return. The obligations of this Article 6 will survive termination or expiration of this Agreement for any reason. Upon termination or expiration of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
  5. Retention of Rights. Upon termination of this Agreement for any reason, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof. This Article 6 does not transfer ownership of Confidential Information or grant a license thereto. Discloser retains all right, title, and interest in and to all Confidential Information, except as set forth in Section 2.1 above.
  6. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
    1. Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
    2. Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.

Warranties; Disclaimer.

Each Party warrants and represents that it has the authority to execute, deliver, and perform its obligations under this Agreement, having obtained all required consents or duly authorized approvals, and is duly organized or formed, and validly existing and in good standing under the laws of the state of its incorporation or formation. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SAAS, THE CONTENTS THEREIN, AND ANY ACCOMPANYING DELIVERABLES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, AND PROVIDER DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

Indemnification.

Customer Infringement Indemnity. Customer, at its expense, will defend, indemnify, and hold Provider harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys’ fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Provider which relate to a claim, action, lawsuit, or proceeding made or brought against Provider by a third party alleging the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark (each a “Provider Claim”) by way of Provider’s use of any Customer Data, Customer Marks, or other information or materials provided by Customer in connection with this Agreement.

Provider Infringement Indemnity. Provider, at its expense, will defend, indemnify, and hold Customer harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys’ fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Customer to the extent such directly relates to a claim, action, lawsuit, or proceeding made or brought against Customer by a third party alleging the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark (each a “Customer Claim”) by way of Customer’s use of the SaaS that Provider provides to Customer under this Agreement.

For purposes herein, each Party, when providing indemnification, will be termed an “Indemnifying Party” and each Party, when receiving the benefits of indemnification, shall be termed an “Indemnified Party”. The term “Indemnified Party” will include the other Party’s respective shareholders, officers, directors, administrators, managers, employees, servants and agents, and successors and assigns. The Indemnifying Party’s obligations under this Section will be subject to the Indemnified Party providing the Indemnifying Party prompt notice of the event giving rise to an indemnity obligation, providing reasonable cooperation and assistance in the defense or settlement of any claim (at the Indemnifying Party’s sole cost and expense), and granting the Indemnifying Party control over the defense and settlement of the same. The Indemnifying Party will have the right to consent to any settlement or judgment that is binding upon the Indemnifying Party.
In the event a court of competent jurisdiction makes a determination that the SaaS infringes on or otherwise violates any third-party registered patent, trade secret, copyright, or trademark, or if Provider determines that the SaaS likely infringes or otherwise violates such third party’s foregoing intellectual property rights, Provider, at its sole option and expense, will: (a) modify the allegedly infringing or violating portion of the SaaS so as to make it non-infringing and non-violating; (b) replace the allegedly infringing or violating SaaS, or any portion thereof, with a non-infringing and/or non-violating product having reasonably equivalent functionality; (c) obtain the right for Customer to continue using the allegedly infringing or violating portion of the SaaS; or (d) revoke the license to the allegedly infringing or violating SaaS and provide a prorata refund to Customer for all fees prepaid for the SaaS and not yet earned by Provider.
Provider will have no obligation under this Agreement relating to any indemnification if a Customer Claim results from any of the following: (i) Customer’s continued use of the infringing or violating SaaS after Provider first makes an applicable Correction available to Customer; (ii) Customer’s modification of the SaaS (including a third party acting on its behalf); or (iii) Customer’s use of the SaaS in any manner other than as permitted under this Agreement.

Limitation of Liability. IMPORTANT. Provider and its subsidiaries, affiliates, shareholders, directors, officers, employees, and providers (“Provider Parties”) will not be liable (jointly or severally) to Customer, Visitors, or any third party, for indirect, consequential, special, incidental, punitive, or exemplary damages, including, without limitation, lost profits, lost savings, and lost revenues (collectively, the “Excluded Damages”), whether or not characterized in negligence, tort, contract, or other theory of liability, even if any of Provider Parties have been advised of the possibility of or could have foreseen any of the excluded damages, and irrespective of any failure of an essential purpose of a limited remedy. In no event will the liability of Provider Parties arising out of any claim related to this Agreement, except for Provider’s indemnification for intellectual property infringement pursuant to Section 8, exceed the aggregate amount paid by Customer hereunder in the twelve (12) months immediately preceding the event giving rise to such claim. For any Provider indemnification for intellectual property infringement pursuant to Section 8, in no event will the liability of provider parties arising out of any such claim exceed the aggregate amount paid by customer hereunder in the twelve (12) months immediately preceding the event giving rise to such claim. If any applicable authority holds any portion of this section to be unenforceable, then Provider Parties’ liability will be limited to the fullest possible extent permitted by applicable law.

Term; Termination.

Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for the period set forth in the Order Form or, if none, for one (1) year. Thereafter, the Term will renew for successive one (1) year periods, unless either Party terminates this Agreement by providing written notice of such termination to the other Party at least thirty (30) days prior to the renewal date.
Termination for Cause. Either Party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other Party first cures such breach, or effective immediately if the breach is not subject to cure. Without limiting Provider’s other rights and remedies, Provider may suspend or terminate a Customer’s or other Visitor’s access to the SaaS at any time, without advanced notice, if Provider reasonably concludes such Customer’s clients or other Visitor has conducted itself in a way that is not consistent with the requirements of this Agreement or in a way that subjects Provider to potential liability.
Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the SaaS and delete, destroy, or return all Provider Confidential Information in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay Fees incurred before termination; (b) Section 5 (IP), Section 6 (Confidential Information), Section 7 Warranty Disclaimers), Section 8 (Indemnification), and Section 9 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

Miscellaneous.

Notice. All notices to a Party hereunder shall be in writing, and delivered by certified mail, return receipt requested, overnight courier service, or by facsimile with confirmation by the above described mailing methods to the address(es) set forth in this Agreement, or to a different address which a Party may give written notice of pursuant to this Section from time to time. Notice will be deemed delivered and received on the date it is actually received or as stated in written evidence of receipt from the applicable mail courier.

Amendment. This Agreement may not be amended except in a writing executed by authorized representatives of Customer and Provider.

Assignment. This Agreement is not transferable, assignable, delegable, or sublicensable by Customer in whole or in part, without the prior written permission of Provider. This Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors, trustees, administrators, and assigns.

Survival. Any and all provisions, promises, and warranties contained herein, which by their nature or effect are required or intended to be observed, kept, or performed after termination or expiration of this Agreement, will survive the termination or expiration of this Agreement and remain binding upon and for the benefit of the Parties hereto.

Independent Contractor. Provider is acting in performance of this Agreement as an independent contractor.

Binding Effect and Third-Party Beneficiary. Except if specifically stated in this Agreement, neither Party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other Party. No third party is a beneficiary of this Agreement.

Waiver of Rights. Except where specifically stated to the contrary, all remedies available to either Party for breach of this Agreement under this Agreement, at law, or in equity, are cumulative and non-exclusive. A waiver or failure of either Party at any time to require performance by the other Party of any provision hereof will not affect the full right to require such performance at any time thereafter.

Injunctive Relief. If Customer breaches Section 2.2 of this Agreement, Provider will be entitled, in addition to any other rights available under this Agreement, or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Customer acknowledges and agrees to not contest such application.

Severability. If any provision or portion thereof of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability, all other provisions and portions thereof of this Agreement will not be affected thereby and will be valid and enforced to the fullest extent permitted by law.

Choice of Law and Venue. This Agreement, as well as any and all tort claims arising from this Agreement or arising from any of the proposals, negotiations, communications, or understandings regarding this Agreement, will be governed by and construed in accordance with the laws of the State of Texas, applicable to all contracts without regard to any conflict or choice of law principles. The sole jurisdiction and venue for any litigation arising out of this Agreement will be an appropriate federal or state court located in Texas. Further, neither the United Nations Convention on Contractors for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement.

Force Majeure. Any failure or delay by Provider in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, epidemic, pandemic, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States, or any nation where the obligations under this Agreement are to be executed, strikes, supplier and third-party failure, lockouts, labor difficulties, quarantines, health related orders, or other similar actions taken by governmental authorities, or any similar cause beyond the reasonable control of Provider.

Entire Agreement. This Agreement, along with any Order Form, contains the final and entire agreement of the parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the Agreement’s subject matter. In the event of any conflict between an Order Forma and this Agreement, the applicable Order Form will control.

Counterparts. This Agreement may be executed in one or more counterparts, each of which will for all purposes be deemed an original and all of which will constitute the same instrument.

Headings. Headings of particular sections are inserted only for convenience and are not to be considered a part of this Agreement or be used to define, limit, or construe the scope of any term or provision of this Agreement. Should any provision of this Agreement require judicial interpretation, the Parties agree that the court interpreting or construing the same will not apply a presumption that the terms of this Agreement will be more strictly construed against one Party than against the other.

Export Laws Compliance. Neither Party will export, directly or indirectly, any technical data acquired from the other Party pursuant to this Agreement (or any product utilizing such data) to any country for which the United States Government, any agency thereof, or any applicable foreign governmental body at the time of export requires an export license or other governmental approval without first obtaining such license or approval. Each Party will comply with all applicable export and import laws and regulations.

Legal Counsel. Each Party acknowledges that it has had the right to seek independent legal counsel with respect to this Agreement, and that each Party has substantially participated in the drafting and negotiation of this Agreement. No provision hereof will be construed against one Party by virtue of the fact that such provision was drafted by such Party.