SAAS SUBSCRIPTION TERMS AND CONDITIONS

These SaaS Subscription Terms and Conditions (these “Terms and Conditions” or “Agreement”) governs access to and use of the Services (as defined below), and is between Revenue Analytics, LLC, a Georgia limited liability company (“RA”), and the company or other legal entity accepting this Agreement, and any affiliates of that company or entity (“Licensee”). 

These Terms and Conditions are binding and effective (the “Effective Date”), as of the date that Licensee accepts the Agreement by executing a Quote (defined below) form that references these Terms and Conditions. 

The individual accepting these Terms and Conditions on behalf the Licensee (the “Licensee Signatory”) represents and warrants that (i) they have the full right and authority to bind the Licensee to these Terms and Conditions; (ii) these Terms and Conditions set forth herein are fully understood and agreed to by the Licensee Signatory; and (iii) acceptance of this Agreement and the terms and conditions set forth herein (x) represents a complete and binding obligation of the Licensee, and (y) will not violate the any term or condition of any other agreement to which the Licensee is a party.

1.    Definitions
“Analytics Software” means software that analyzes or otherwise processes data for the purposes of achieving certain insights, information, or results, or for purposes of making pricing, discounting, inventory, or other recommendations, as well as any Modifications thereto. Analytics Software may include, but not be limited to, analytical modules, components, and microservices that are used to describe certain data or events (descriptive analytics), diagnose the reasons such events have occurred (diagnostic analytics), predict future outcomes (predictive analytics), and prescribe certain action (prescriptive analytics), that relate to Licensee and other statistical segmentation, regression, normalization, demand forecasting, market response measurement, price sensitivity measurement, pricing or discounting rules or logic, or optimization of prices, inventory, discounts or promotions.

“Confidential Information” is defined in Section 16.

“Creations” means any tangible or intangible thing or information, whether or not provided as part of any Implementation Services (defined below), in any language, format or medium now existing or hereafter developed, and all tangible embodiments thereof, whether or not such creation is or may in the future be protected under any Intellectual Property Right or considered Confidential Information, including ideas, creations, inventions, discoveries, innovations, industrial models, improvements, designs, methods, processes, formulae, works of authorship, products, compositions, displays, models, prototypes, samples, findings, documentation, and specifications and all  Modifications to software or documentation.

“Deliverables” means all Creations that are delivered to Licensee by or on behalf of RA as a part of the Implementation Services, together with any items identified as such within a Quote. The SaaS Technology is not a Deliverable.

“Documentation” means the documentation provided by RA to Licensee for the use of the SaaS Services, if any.

“End User” means Licensee’s authorized employees and individual subcontractors who are solely providing services to Licensee.

“Fees” means the Implementation Fees, SaaS Fees and all other fees to be paid as expressly set forth on a Purchase Order submitted and accepted by RA in accordance with the terms of this Agreement.

“Implementation Services” means those integration, configuration, implementation, and similar services more particularly set forth on a Quote and/or Purchase Order.

“Intellectual Property Rights” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

“Licensee Materials” means any Creations provided to RA by or on behalf of Licensee, and/or any data or related inputs provided by Licensee to RA for provision of the Services.

“Modification” means any enhancement, upgrade, update, new version, new release, bug fix, modification, derivative work, or other change. The verb, to “Modify,” means the act of creating a Modification.

“Module” means any Modification that is designed for sale either in addition to the Application or after the Application

“Personal Information” is defined in Section 7.2.

“Platform” means the information technology infrastructure, including computers, servers, hardware, databases, database management systems, networks, communications infrastructure, devices, websites, and third-party software used by RA to provide the SaaS Services, including the RA Technology and Third-Party Technology.

“Product” means the specific RA Product and/or any Modules as set forth on a fully executed Quote, and for which Licensee will access and make use of through the SaaS Services.

“Purchase Order” means a valid and binding order for Services submitted to RA by Licensee in accordance with the terms set forth herein and referencing a Quote, as such is necessary.

“Privacy Laws” is defined in Section 8.2

“Quote” means any quote provided by RA for the Services described herein, including descriptions of work attached to such Quote that are accepted by Licensee for services to be performed, and referenced in Licensee’s Purchase Order as the case may be.

“Report” means a document or presentation that summarizes the results of SaaS Services or makes recommendations for additional actions to be taken by RA or Licensee, including proposed specifications for Implementation Services.

“RA Materials” means all Creations developed or otherwise owned by RA, as well as any Modifications thereto, to which RA provides Licensee access as a part of the SaaS Services, other than the Analytics Software.

“RA Personnel” means all employees and subcontractors, if any, engaged by RA to perform the Implementation Services.

“RA Technology” means the Analytics Software and RA Materials.

“SaaS Services” is defined in Section 4.2. Use of the SaaS Services includes the functionality of the SaaS Technology.

“SaaS Technology” means the RA Technology and the Third-Party Technology.

“SaaS Term” means the term so identified in the applicable Quote or Schedule.

“Services” is defined in Section 5.

“Support Services” is defined in Section 5.

“Third Party Technology” means any Creations that are owned by Persons other than RA and for which a license or other permission is required from such Persons to perform the Implementation Services or exploit the Deliverables in the manner contemplated by this Agreement, as well as any Modifications thereto.

2.    GENERAL. The following Terms and Conditions provide for terms that are common to this Agreement, including all schedules and addendums. In the event of a conflict between these Terms and Conditions and any Quote or Purchase Order, these Terms and Conditions will control, unless expressly stated to the contrary in the Quote or Purchase Order. Capitalized terms not otherwise defined herein shall have the meanings set forth in Schedule 1. Any additional stipulations or terms to be incorporated into these Terms and Conditions shall be set forth in Schedule 3, and shall become an integral part of this Agreement.

3.    LICENSE. During the SaaS Term and in consideration of the payment of Fees (defined below), RA grants to Licensee a non-exclusive, worldwide (subject to applicable laws regarding export controls), non-transferrable, and limited right and license to either (i) remotely access and use the SaaS Services, or (ii) routinely receive and use a data feed provided by RA, in either case solely for the benefit of Licensee, solely by its End Users. Licensee does not have the right to physically possess any of the Platform but may possess the Reports and Documentation. This Agreement also authorizes Licensee to use the related written materials and “online” or electronic documentation (“Documentation”) solely in conjunction with Licensee’s authorized use of the Services. Licensee may make a reasonable number of copies of the Documentation for Licensee’s use of the SaaS Services.

4.    USE LIMITS; RIGHTS RESERVED.
4.1    Use Limitations. The rights and the licenses set forth in Section 2 are conditioned and limited by the following: Licensee shall not (i) use the SaaS Technology, Services, Deliverables, or any of RA or RA suppliers’ Confidential Information to create any software, service, or documentation that is in any way similar to the RA Technology; (ii) encumber, transfer, rent, donate, assign, lease, or otherwise use the SaaS Technology, Services, or Deliverables in any time-sharing or service bureau arrangement; (iii) use the SaaS Technology, Services, or Deliverables to process data of any third party for a fee or any other consideration; (iv) market, sell, distribute, sublicense, manufacture, or otherwise commercially exploit the SaaS Technology, Services, or Deliverables; (v) allow third parties under its control to decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the SaaS Technology, including use of any similar means to discover the source code of the SaaS Technology or to discover the Confidential Information therein; (vi) not lease, license, sell, sublicense, or otherwise transfer its access to or use of the SaaS Technology, Services, or Deliverables.

4.2.    RA Reservation of Rights and Ownership. Without expanding any rights under this Agreement, other than as set forth in Section 3, no rights are licensed to Licensee, nor is the SaaS Technology or Deliverables sold. All rights, including all Intellectual Property Rights, not expressly granted in this Agreement are reserved to RA. No rights are granted by implication. All right, title, and interest in and to the Services, SaaS Technology, Deliverables, and all service marks, trademarks, trade names, and logos of RA (“Marks”), together with all RA Intellectual Property Rights, suggestions, contributions, or Modifications thereto and copies of all of the foregoing, will remain in possession of RA and its licensors, and RA and its licensors shall remain the exclusive owners of all such property and all rights and interests set forth herein and otherwise. Licensee acknowledges that the SaaS Technology and the Platform, in source code, object code and any other form, remains Confidential Information of RA or its suppliers or licensors.

4.3.    Licensee Ownership. Licensee and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Licensee Materials, including all Intellectual Property Rights therein. Licensee hereby grants to RA the right and license to use the Licensee Materials solely to provide the Services.

5.    PURCHASE ORDERS AND SERVICES
5.1.    General. All services provided by RA under this Agreement (collectively, the “Services”), inclusive of Implementation Services, the SaaS Services and ongoing support for the SaaS Services (the “Support Services”) will be provided (i) in accordance with the Terms and Conditions set forth herein and the applicable Quote as necessary; and, at the election of Licensee, (ii) pursuant to a Purchase Order submitted in accordance with the terms of this Agreement and in a form satisfactory to RA.   Any term set forth on any Purchase Order including Licensee’s pre-printed purchasing terms, which are in addition to or in conflict with either this Agreement and/or the relevant Quote, will be null and void. Any Purchase Order not in accordance with either the terms of this Agreement and/or the relevant Quote is subject to rejection by RA in its sole discretion.

5.2.    SaaS and Support Services. RA will provide Licensee and End Users with (i) access to the functionality of the SaaS Technology (“SaaS Services”) for the particular RA Product(s) as set forth on a Quote and Licensee’s Purchase Order. RA will operate the Platform and provide the SaaS Services via either (x) the internet through the use of web browser software, or (y) a dedicated data feed to Licensee; and (ii) Support Services as set forth on any Quote.

5.3.    Implementation Services. RA may provide implementation services to optimize Licensee’s use of the SaaS Services (the “Implementation Services”).  All Deliverables with respect to such Implementation Services shall be set forth in a Quote.

6.    FEES AND PAYMENT TERMS
6.1.    Services Fees. Licensee will pay RA the Fees for the Services in the amounts set forth in the applicable Quote and Purchase Order (if such is used).  SaaS Services and Support Services Fees shall be paid annually in advance or as otherwise set forth on the Quote.

6.2.    Fees Generally. Fees are non-cancelable and non-refundable. All amounts owed shall be due 30 days from receipt of invoice. All Fees paid and expenses reimbursed under this Agreement will be in United States currency. If provided for in a Quote, Licensee will provide RA with valid and updated credit card information and Licensee authorizes RA to charge such credit card for all Services set forth on the Quote and for charges related to SaaS Services Renewal Term.  Otherwise, Licensee agrees to pay all charges to RA through electronic means (wire or ACH only) to the banking institutions and accounts provided by RA. SaaS Services charges shall be either annually or in accordance with any different billing frequency set forth on the Quote. Licensee is responsible for providing complete and accurate billing and contact information to RA and notifying it of any changes to such information. 

6.3.    Expenses. Licensee shall reimburse RA for all reasonable travel and expenses incurred by RA in connection with the performance of the Implementation Services and as approved in advance by Licensee.

6.4.    Service Suspension and Third-Party Payment Charges. RA, at its option, may suspend the Services, in whole or in part, if RA does not receive all undisputed amounts due and owing under this Agreement within 30 days after delivery of notice to Licensee of the failure to pay such overdue balances. At RA’s election, Licensee will reimburse RA for costs incurred by RA with respect to third-party accounts payable entities, “exchanges” or similar platforms where such platforms require implementation or transaction fees from RA.   Any charge to RA or offset from amounts due RA will be invoiced to Licensee at RA’s discretion.

6.5.    Taxes. The Fees and expenses due to RA as set forth in this Agreement are net amounts to be received by RA, exclusive of all sales, use, withholding, excise, value added, ad valorem taxes, or duties incurred by Licensee or imposed on RA in the performance of this Agreement or otherwise due as a result of this Agreement.

This section will not apply to taxes based solely on RA’s income.  RA will determine in its sole discretion whether or not the SaaS Technology or any Deliverable is to subject to sales, use or other tax, and will invoice Licensee for such tax amounts either concurrent with after invoicing for the appropriate Deliverable or Service.

7.    ACCEPTANCE: CHANGE ORDERS.

7.1.    Acceptance and Performance Warranty. Any Deliverables with respect to Implementation Services shall be subject to acceptance by Licensee to ensure that such meets the specifications of this Agreement and the applicable Quote for such Implementation Services. If Licensee does not reject any Implementation Services Deliverables within 15 days of final delivery of the Deliverables, or RA making such Deliverables available for testing and use, such Deliverables shall be deemed accepted. If any final Deliverable does not materially meet the applicable specifications, Licensee shall notify RA in writing of such nonconformities in reasonable detail, and RA will, at no additional cost, use commercially reasonable efforts to promptly correct such Deliverable so that it conforms to the applicable specifications. If within 30 days of such Licensee notification, any final Deliverable still does not meet the specifications, Licensee may at any time thereafter, as its sole remedy, terminate the applicable Quote, return the Deliverable and all copies thereof to RA, and cease all use and access to the SaaS Services, and RA will refund of any fees or expenses paid in connection with such Deliverables.

7.2.    Change Orders. If Licensee or RA wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other in writing. RA shall, within a reasonable time after such request, provide a written estimate to Licensee of: (a) the likely time required to implement the change; (b) any necessary variations to the fees and other charges for the Services arising from the change; (c) the likely effect of the change on the Services; and (d) any other impact the change might have on the performance of this Agreement. Promptly after receipt of the written estimate, the parties shall negotiate in good faith the terms of such change (if and when mutually agreed in writing, a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing.

8.    LICENSEE OBLIGATIONS.
8.1.    Use of SaaS Services. Licensee shall not, and shall not permit others, in using the SaaS Services to: (i) engage in any conduct that could constitute a criminal offense or give rise to civil liability for RA; (ii) misrepresent or in any other way falsely identify Licensee’s identity or affiliation; (iii) transmit or upload any material through the SaaS Services containing viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing RA, or any other person’s or entity’s, network, computer system, or other equipment; (iv) interfere with or disrupt the SaaS Services, networks, or servers connected to the RA systems or violate the regulations, policies, or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the SaaS Services; or (vi interfere with another party’s use of the SaaS Services. RA has no obligation to monitor Licensee’s use of the SaaS Services. However, RA reserves the right (but has no obligation) at all times to monitor, review, retain, and disclose any information as necessary to satisfy or cooperate with any applicable Law. Licensee shall be responsible for all acts and omissions of its End Users as if such acts or omissions were its own and comply with all laws in its use of the SaaS Services.

8.2.    Personal Information. The parties acknowledge and agree that the performance of the Services, including the provision of the SaaS Services, does not require RA to receive, use, access, or store Personal Information, and Licensee shall not provide, or allow its End Users to provide, Personal Information to RA, directly or indirectly, in connection with the use of the SaaS Services. Licensee shall take reasonable precautions not to provide to RA, and not to provide RA access to, Personal Information. If RA inadvertently receives Personal Information from Licensee, RA shall immediately notify Licensee, whereupon the parties shall reasonably work together to permanently remove all Personal Information received by RA from RA’s computing systems and/or the Platform. For the purposes of this Agreement, the following terms have the following meanings: (i) “Personal Information” means any information that identifies or reasonably can be used to identify an individual person or information regarding an individual person, to the extent regulated or limited by any Privacy Laws; and (ii) “Privacy Laws” means all federal, state, and non-US laws and regulations and accepted industry standards that limit or restrict the uses of, or place requirements on the transmission or storage of, Personal Information, including the Health Insurance Portability and Accountability Act of 1996, as amended, and the Health Information Technology for Economic and Clinical Health Act, the Gramm-Leach-Bliley Act, the Fair Credit Reporting Act, the Payment Card Industry Data Security Standard, Data Protection Directive, and General Data Protection Regulation.

8.3.    Services. With respect to any Services, Licensee shall have the obligations set forth in this Section:
(a)    Access and Assistance; Licensee Materials. Licensee shall provide such access to Licensee’s premises, facilities, and computer systems and networks as may reasonably be requested by RA for the purposes of performing the Implementation Services. To the extent RA accesses Licensee’s computer systems and networks or performs Services at Licensee’s premises or other facilities, RA and the RA Personnel shall comply with Licensee’s policies or otherwise as mutually agreed upon between the parties. Licensee shall respond promptly to any RA request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for RA to perform the Services. 

Licensee shall provide such Licensee Materials as set forth in the applicable Quote or as RA may reasonably request in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects.

(b)    Compliance. Licensee shall maintain all necessary licenses and consents and comply with all applicable Law in relation to the Services.

(c)    Delay in Performance. If RA’s performance of its obligations under this Agreement is prevented or delayed by any action or failure to act of Licensee or its agents, subcontractors, consultants, or employees, RA shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Licensee, in each case, to the extent arising directly or indirectly from such prevention or delay, and RA’s obligation to perform will be extended by the same number of days as Licensee’s prevention or delay.

9.    DATA USE. Licensee agrees that data derived by RA from RA’s performance of the Services or input by Licensee may be used by RA, in a fully anonymized fashion, for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules. The results of such analysis (“De-identified Data”) may be used by Revenue Analytics for any lawful purpose. Notwithstanding anything contained in this Agreement, De-identified Data shall not contain (i) any Confidential Information of Licensee, (ii) any information that identifies or can be reasonably used to identify an individual person, (iii) any information that identifies or can be reasonably used to identify Licensee or its affiliates and their suppliers, or (iv) any information that identifies or can be reasonably used to identify any activities or behaviors of Licensee.

10.    DATA SECURITY AND PRIVACY. RA will provide the Services in accordance with the Data Security and Privacy Plan set which is available here.

11.    AUTHORIZATION; LIMITED WARRANTY; DISCLAIMER.
11.1.    Authorization. Each party represents that (i) it has the full right and authority to enter into this Agreement and perform all of its obligations hereunder; (ii) this Agreement represents a valid and binding obligation of such party; and (iii) the execution and performance under this Agreement will not result in violation of any other material agreement to which it is a party.

11.2.    Limited Warranty. RA represents and warrants that (a) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (b) it will maintain all necessary licenses and consents and comply with all applicable Laws applicable to the provision of the Services; and (c) the SaaS Services will, during the Term, perform substantially in accordance with its Documentation under normal use and circumstances. In the event of RA’s breach of the foregoing warranty, RAs’ sole and exclusive obligation and liability, and Licensee’s sole and exclusive remedy, shall be for RA to use commercially reasonable efforts to cure such breach. If RA cannot cure such breach within 30 days after Licensee’s written notice of such breach, Licensee’s may, at its option, terminate the relevant Quote and, in the event of no other active Quote or Purchase Order, this Agreement upon 30 days advance written notice to RA.  RA’s obligations set forth herein are subject to Licensee’s compliance with all terms of this Agreement and the relevant Quote, and RA’s rights under Section 7.3c of the Agreement.

11.3.    Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 11.2, EACH PARTY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS TO THE OTHER PARTY REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY RA. WITHOUT LIMITING THE FOREGOING, NO WARRANTY IS MADE THAT USE OF THE SERVICES, SAAS TECHNOLOGY, DELIVERABLES, OR PLATFORM WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES, SAAS TECHNOLOGY, DELIVERABLES, OR PLATFORM WILL BE CORRECTED, OR THAT THE FUNCTIONALITY OF THE SERVICES, SAAS TECHNOLOGY, DELIVERABLES, OR THE SAAS SERVICES WILL MEET LICENSEE’S REQUIREMENTS.

12.    LIMITATION OF LIABILITY.
12.1.    Exclusion of Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS

OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.2.    Liability Cap. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO RA PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

12.3.    Exceptions. The exclusions and limitations in Section 12.1 and Section 12.2 shall not apply to: (a) the license limitations set forth in Section 2 (License); (b) Section 3 (Use Limits: Rights Reserved), and 8 (Non-Disclosure and Confidentiality); or (b) a party’s obligations under Section 13 (Indemnification).

13.    INDEMNIFICATION.
13.1.    RA Indemnification. RA shall indemnify, defend, and hold harmless Licensee and its officers, directors, managers, employees, agents, successors, and permitted assigns against any third party claim, suit, action, or proceeding (each, an “Action”) based on a claim that Licensee’s receipt or use of the Services or Deliverables in accordance with this Agreement infringes any Intellectual Property Right or misappropriates any trade secret of a third party, and shall pay all settlements entered into and damages awarded against Licensee (including reasonable outside counsel fees, if and only if RA fails to take sole control of such Action as provided in Section 13.3) to the extent based on such an Action. RA shall have no obligations under this Section 13.1 with respect to claims to the extent arising out of: (a) any instruction, information, designs, specifications, or other materials provided by Licensee to RA; (b) use of the Services or Deliverables in combination with any materials, software, or equipment not supplied to Licensee or specified by RA in writing; or (c) any Modifications made to the Services or Deliverables by or on behalf of any person or entity other than RA. If the Services or Deliverables, or any part thereof, become, or in the opinion of RA may become, the subject of a claim of infringement or misappropriation, RA may, at its option: (i) procure for Licensee the right to use such Services or Deliverables free of any liability; (ii) replace or modify the Services or Deliverables to make them non-infringing; or (iii) terminate this Agreement and refund to Licensee any portion of the fees prepaid by Licensee for the infringing Services or Deliverables.

13.2.    Licensee Indemnification. Licensee shall defend RA and its officers, directors, employees, agents, affiliates, successors, and permitted assigns against all Actions based on a claim that any information or materials provided by Licensee and RA’ receipt or use thereof, infringes any Intellectual Property Right or misappropriates any trade secret of a third party, and shall pay all settlements entered into and damages awarded (including any reasonable outside counsel fees, if any only if Licensee fails to take sole control of such Action as provided in Section 13.3) against RA to the extent based on such an Action.

13.3.    Indemnification Procedures. The indemnifying party shall solely control the defense and settlement of the applicable Action. The party seeking indemnification shall promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of the Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any Action in a manner that requires the indemnified party to pay monies or admit liability without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this Section 13.3 shall not relieve the indemnifying party of its obligations under this Section 13 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.

14.    RENEWAL, TERM, AND TERMINATION.
14.1.    Term. This Agreement shall commence on the Effective Date and shall continue until terminated as set forth in Section 14.3 below. The initial term for SaaS Services will be set forth in a Quote (the “Initial Term”), and each renewal of SaaS Services will be a “Renewal Term”. The Initial Term and all Renewal Terms are the “Term”.

14.2.    Renewal.  At the end of the Initial Term, the SaaS Services as set forth in the Quote will annually renew for subsequent 1-year terms at the prior term rate plus a percentage increase from such prior term rate as set forth in the Quote.  Such renewal will be automatic unless Licensee exercises its termination right by providing a written notice of termination ninety (90) days prior to the renewal date for the relevant Renewal Term (the “Termination Notice”). During any such Renewal Term, invoices will continue to be issued based on schedule set forth in the Quote.

14.3.    Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, the parties shall have the right to terminate this Agreement or a Quote as provided below:

(a)    By either party in writing if the other party commits a material breach of this Agreement or the applicable Quote and such breach remains uncured 30 days after written notice of such breach is delivered to such other party including the failure to pay any fees due to RA; or
(b)    By either party in writing if the other party makes an assignment for the benefit of creditors or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium, or similar laws; or
(c)    By Licensee, at its election, upon providing a Termination Notice as set forth in section 14.2. Termination would then be effective at the end of the Term.

14.4.    Effect. Termination of a Quote shall not effectuate a termination of this Agreement or otherwise affect any other outstanding Purchase Orders unless no other Purchase Orders remain outstanding, in which case this Agreement may terminate pursuant to Section 14.3. Upon expiration or termination of this Agreement for any reason, (i) all outstanding Purchase Orders and all license rights granted under this Agreement shall terminate and (ii) all rights, licenses, and access to the SaaS Services granted by RA to Licensee under this Agreement or such Quote, as applicable, will immediately cease. Within 30 days after termination or expiration of this Agreement, each party may request the other to either return or destroy the Confidential Information of the other party. The requested party will comply within 30 days of the request.

14.5.    Survival. The rights and obligations of the parties set forth in this Section 14.5 and Sections 2, 3, 5 (for unpaid sums only) 8, 12, 13, 16, 17, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

15.    Publicity. RA in its discretion may issue a press release or otherwise make public in written form, with respect to each solution agreed upon by the parties under this Agreement, that Licensee has selected RA to provide such product or solution to Licensee. RA will provide a draft of any such press release or statement to Licensee for approval, which shall not be unreasonably withheld and provided in a reasonable timeframe to RA.

16.    Non-disclosure and Confidentiality. Licensee and RA may each be a “Recipient” and/or a “Discloser” as these terms are used in this Section 16. “Confidential Information” means information not generally known to third parties and which is confidential or proprietary to the Discloser (or third parties to which Discloser has an obligation of confidentiality), including, but not limited to, information about the Discloser's processes, products, intellectual property, computer systems and software design, services, research, development roadmaps and development in general, purchasing, accounting, marketing, pricing, selling, servicing, business systems and/or techniques.  All such information that is disclosed by the Discloser to the Recipient, or to which the Recipient obtains access, whether originated by the Recipient or by the Discloser or others, shall be presumed to be Confidential Information of the Discloser.

Recipient shall take all steps as may be reasonably necessary to prevent unauthorized disclosure of Confidential Information, and will not use or disclose any Confidential Information of the Discloser other than for purposes of Recipient’s engagement with Discloser pursuant to the terms of these Terms and Conditions and any Quote.  Recipient agrees that any dissemination of Confidential Information to its employees or agents shall be only for the limited purpose of its involvement with Discloser. Recipient further agrees that it will disclose Confidential Information of the Discloser only to such of its employees and agents who have a need to know said Confidential Information in order to carry out the responsibilities of the Recipient or exercise the rights of the Recipient under this Agreement or a Quote, and only then to employees or agents who have been advised of the confidential nature of such information and have agreed to the same obligation of secrecy.

The nondisclosure obligations of the Recipient provided for by this Section with respect to Confidential Information do not apply to information which: (a) is or becomes a part of the public domain through no act or omission of the Recipient; (b) can be shown to be already possessed by the Recipient as of the date of disclosure; (c) shall be made available to the Recipient on a non-confidential basis by a third party having a right to do so; or (d) is disclosed by order of a court of competent jurisdiction.

If the Recipient receives a subpoena or other validly issued administrative or judicial process demanding Confidential Information of the Discloser, the Recipient must promptly notify the Discloser and tender to the Discloser the defense of that demand.  Unless the demand has been timely limited, quashed, or extended, the Recipient will thereafter be entitled to comply with such demand to the extent required by law.  If requested by the Discloser, the Recipient will cooperate (at the expense of the Discloser) in the defense of a demand.

If the Recipient becomes aware of the unauthorized use, disclosure, publication or dissemination of any Confidential Information, or any other violation of this Section 16, the Recipient shall immediately notify the Discloser in writing, describing the circumstances and shall cooperate with the Discloser in every reasonable way to remedy the unauthorized use, disclosure, publication or dissemination of Information, or any other violation. This Section 16 will survive termination of these Terms and Conditions.

17.    GENERAL.
17.1.    Governing Law. This Agreement shall be governed by and construed in accordance with the internal Laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule. The United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement or the parties.

17.2.    Assignment. Neither party may assign or transfer this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided that either party may assign the Agreement to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation, or asset acquisition. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

17.3.    Severability. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

17.4.    Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.

17.5.    Amendment; Waiver. This Agreement may only be amended or modified by an agreement in writing signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

17.6.    Force Majeure. Neither party shall be liable for delay or failure in performing any of its obligations hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations, terrorism, communication or utility failures or casualties, or the failures or acts of third parties.

17.7.    Equitable Relief. Each party acknowledges that a breach by a party of Sections 2 (License), 3 (Use Limits; Rights Reserved), 7 (Licensee Obligations) or 8 (Non-Disclosure and Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

17.8.    Relationship of Parties. Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.