SOFTWARE AS A SERVICE AGREEMENT
This SOFTWARE AS A SERVICE AGREEMENT (this “SSA”) is entered into between Awardco, Inc., a Delaware corporation (“Awardco”), and the entity listed on the Order Form purchasing the Services (“Customer”). Awardco and Customer may be referred to collectively as the “Parties” and each individually as a “Party.” The term “Agreement” means, collectively, this SSA and each Order Form.
1. SUBSCRIPTION SERVICES.
1.1 Grant of Rights. Subject to the terms and conditions of the Agreement, and upon payment of applicable Fees, Awardco grants Customer a non-exclusive, non-transferable, non-sublicensable right during the applicable Order Form Term (defined below) to access and use: (a) the Subscription Services identified on the applicable Order Form; and (b) the Documentation, in each case solely for Customer’s internal business purposes.
1.2 Authorized Users. Each Authorized User must be identified by a unique email addressor unique user identification and two or more individuals may not use the Subscription Services as the same Authorized User. Customer will keep its and its Authorized Users’ credentials for the Subscription Services strictly confidential and will be responsible for all activities that occur under its and its Authorized Users’ accounts. Customer will promptly notify Awardco of any (a) known violation of the Agreement by an Authorized User, (b) known breach of security of Customer’s sites, systems, personnel, or processes that are connected to or integrated with the Subscription Services, and/or (c) unauthorized use of its or an Authorized User’s account, and reasonably cooperate and assist Awardco to prevent or terminate such breach or unauthorized use.
1.3 Acceptable Use Policy. Customer will not permit anyone other than Authorized Users to access or use the Subscription Services. Customer shall procure that all Authorized Users comply with the terms and conditions of Awardco’s End User License Agreement, available at https://www.awardco.com/uk/legal#eutu, and End User Acceptable Use Policy, available at https://www.awardco.com/uk/legal#euau, as updated and amended from time to time. Customer will comply with all applicable laws, rules, and regulations in connection with its use of the Subscription Services. Customer will not, and will not permit Authorized Users or others under its control to: (a) rent, lease, or resell the Subscription Services; (b) reproduce, reverse engineer, disassemble, decompile, copy, or make derivative works of the Subscription Services or any feature or function thereof; (c) input or upload to the Subscription Services, or use the Subscription Services to store, display, or transmit, any data, content, or material that is Illegal or Harmful Content, and/or violates or infringes upon the rights of a third party, or is otherwise not in compliance with Awardco’s End User Acceptable Use Policy; (d) circumvent, disable, breach, or endanger any security or other technological features or measures of the Subscription Services, or otherwise attempt to disrupt the operation of the Subscription Services; (e) strip, mine, or scrape the Services through the introduction of software or automated agents such as bots or web crawlers; (f) use any component of the Subscription Services or any Awardco Confidential Information to teach or train any large language model or artificial intelligence algorithm; (g) alter or remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Subscription Services; or (h) develop a competitive product or service to the Subscription Services or copy its features, functionality, or user interface.
1.4 Suspension Generally. Awardco may suspend or limit any access or use of the Subscription Services or remove or disable or restrict the visibility of any individual account or User Content that Awardco reasonably and in good faith believes violates the Agreement or may result in imminent material harm to the Subscription Services or its users. Awardco will promptly notify Customer of any such action, and before such suspension if reasonably practicable. Awardco will limit a suspension or limitation as narrow in time and scope as reasonably possible under the circumstances.
1.5 Affiliates. At Customer’s option, Customer may provision Authorized Users within Customer’s Affiliates, provided that Customer remains responsible for its and its Affiliates’ compliance with the Agreement, and Awardco will have the right to enforce any breach by Customer’s Affiliates of the Agreement against Customer directly. No Customer Affiliate will be considered a party to the Agreement unless such Customer Affiliate enters into a separate Order Form with Awardco adopting this SSA as the governing terms.
1.6 Mobile App Access. As a courtesy, Awardco may make one or more Mobile Apps available from time to time, whether through third-party app stores, such as Apple’s App Store or the Google Play Store, or directly to Customer or Authorized Users. Use of the Mobile Apps by Customer or its Authorized Users is optional and subject to availability, and not all functionality of the Subscription Services will be accessible through the Mobile Apps. Users of the Mobile Apps receive their rights to use the Mobile Apps pursuant to, and subject to the terms and conditions of, the applicable Awardco end-user license agreement that accompanies the Mobile Apps or (as the case may be) such other end-user terms and conditions that apply pursuant to the relevant third-party app store agreement(s). Except as otherwise expressly provided in such end-user license agreement or terms and conditions, Awardco does not guarantee that the Mobile Apps, or any of their features, are or will continue to be available, up-to-date, defect-free, supported, or suitable for Customer’s or any user’s purposes, and those who use the Mobile Apps do so at their own discretion and risk.
1.7 Subcontractors. Awardco may subcontract aspects of the Services to third parties and may permit its subcontractors to exercise the rights granted to Awardco under the Agreement in order to provide the Services, provided that Awardco will remain responsible for (a) compliance of its subcontractors with the terms of the Agreement, and (b) the overall performance of the Services as required under the Agreement.
1.8 Marketplace Partners. Awardco may utilize Marketplace Partners in connection with the Subscription Services and the provision of Redemptions to Authorized Users. Customer may limit the Marketplace Partners from whom Customer permits its Authorized Users to request Redemptions. Marketplace Partners will not be considered subcontractors of Awardco under the Agreement. Awardco may add or remove Marketplace Partners in connection with the Subscription Services at any time in its sole discretion. Awardco will work diligently with Customer to promptly address any issues or failures caused by a Marketplace Partner in connection with an Authorized User’s proper use of the Subscription Services.
2. SECURITY; DATA; API ACCESS.
2.1 Information Security. Awardco has implemented and will maintain industry standard technical and organizational measures designed to preserve the security, integrity, and confidentiality of Customer Data and protect against the occurrence of accidental or unlawful destruction, loss, alteration, or unauthorized disclosure of or access to Customer Data in Awardco’s possession or control (any such occurrence, a “Security Incident”). Awardco is committed to the protection and reliability of Customer Data and upon request will provide Customer with a copy of Awardco’s then-most recent SOC 2 Type II report and/or other relevant third-party assessments. All information provided to Customer pursuant to this Section 2.1 is deemed Confidential Information of Awardco.
2.2 Customer Data. Customer is solely responsible for obtaining all necessary rights and licenses for Awardco to access, use and process all Customer Data as contemplated here under. Customer authorizes Awardco (and its Affiliates, Marketplace Partners, subcontractors, and subprocessors) to access, use and process all Customer Data as necessary to perform and fulfill its obligations under the Agreement and as permitted by applicable law. To the extent Customer requires Awardco to process any Personal Data that is subject to the General Data Protection Regulation 2016/679 (the “GDPR”) (including to the extent applicable as the GDPR forms part of UK domestic law by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (as amended)), UK Data Protection Act 2018, California Consumer Privacy Act, or any other data protection or privacy law that requires a data processing or similar agreement between the Parties concerning such Personal Data, the Data Processing Agreement available at https://award.co/legal#dpa will be deemed to form a part of and be incorporated into the Agreement by this reference.
2.3 Analytics Data. Awardco may access, collect, analyze, and use the usage statistics, recognition data, diagnostic data, telemetry data, metadata, and other platform data, information, or insights generated or derived from the provision, use and performance of the Services and related software, systems, programs, and technologies (“Analytics Data”) for its own business purposes, such as improving its products and services, analytics, and industry analysis. Analytics Data is not Customer Data and will not contain Customer Data or Customer Confidential Information. Awardco will not publicly publish, distribute or display Analytics Data except in anonymized or aggregated form that does not in any manner reveal the identity, whether directly or indirectly, of Customer or its Affiliates or Authorized Users, and would not permit a third party to identify the Customer or its Affiliates orAuthorized Users.
2.4 Illegal or Harmful Content. Awardco does not tolerate Illegal or Harmful Content uploaded through the Services. Awardco will process and investigate notices of alleged Illegal or Harmful Content, and take appropriate actions, as required under the UK Online Safety Act, EU Digital Services Act and any other applicable laws. If the Customer or its Affiliates or Authorized Users believe any content posted on or through the Services is Illegal or Harmful Content or violates Awardco’s Acceptable Use Policy (available at https://www.awardco.com/uk/legal#euau), Customer should notify Awardco by using the online form available at legal@awardco.com. The notification must be in writing and contain: (i) a description of the alleged Illegal or Harmful Content; (ii) identification of the content that is claimed to be illegal, and where the content that the Customer or its Affiliates or Authorized Users claim is illegal is located on the Services, with enough detail that Awardco may find it on the Services; and (iii) Customer’s address, telephone number, and email address.
a) If the Customer or its Affiliates or Authorized Users believe that any Customer Data that was removed (or to which access was disabled or restricted) is not illegal, or Customer otherwise wishes to complain about any action Awardco has taken, or not taken, in relation to restricting or removing content on the grounds that the content is illegal or incompatible with this Agreement, Customer may send a written complaint to legal@awardco.com containing: (i) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; and (ii) Customer’s name, address, telephone number, and email address.
(b) In accordance with the UK Online Safety Act, EU Digital Services Act and any other applicable laws, Awardco has adopted a policy of terminating, in appropriate circumstances and at Awardco’s sole discretion, the accounts of customers and Authorized Users who are deemed to be repeat uploaders of illegal content or who frequently submit notices or complaints about illegal content that are manifestly unfounded. Awardco may also at its sole discretion limit access to the Services and/or terminate the accounts of Customer, any of its Affiliate(s) or any Authorized Users who upload illegal content or violate our Acceptable Use Policy. Awardco may use automated means of reviewing Customer Data, in addition to human review. For further information in relation to content moderation, please see our Acceptable Use Policy here.
(c) Any suspected fraudulent, abusive or illegal activity or Illegal or Harmful Content may be referred to appropriate law enforcement authorities. Where required by applicable law, Awardco will advise Customer if it restricts or removes any Customer Data submitted, uploaded, or transmitted by the Customer or its Affiliates or Authorized Users to the Services or suspend or terminate the Customer or its Affiliates or Authorized Users access to the Services, and will provide Customer with a statement of reasons as to why Awardco has taken such action.
(d) If: (i) Awardco removes, disables or restricts the visibility of any Customer Data on the basis that it is illegal content; (ii) Awardco suspends or terminates the Customer’s or its Affiliate(s)’ or Authorized User(s)’ account (or any part of it) and/or access to or use of the Services; (iii) Awardco blocks the Customer or its Affiliates or Authorized Users from future access to the Services, or takes any other actions to restrict Customer Data or access to and use of the Services, and Customer disagrees with this decision, Customer can contact Awardco at legal@awardco.com, and Awardco will consider Customer’s notification in accordance with its internal policies and procedures. If Awardco removes, takes down or restricts the visibility any Customer Data, or suspends or bans the Customer or its Affiliate(s) or Authorized User(s) from using the Services in breach of this Agreement, then Customer can bring a claim against Awardco for breach of contract.
(e) In accordance with Article 11 of the EU Digital Services Act, the European Commission, EU Member States’ authorities, and the European Board for Digital Service may contact Awardco regarding the application of the EU Digital Services Act. Awardco has appointed Verasafe as its EU legal representative for the purposes of the EU Digital Services Act, who can be reached at https://verasafe.com/public-resources/contact-dsa-legal-representative/ or via telephone at: +420 228 881 031. Communications to these email addresses should be in English.
2.5 API Access. Awardco will provide access to APIs (or “application programming interfaces”) and API materials, as well as the ability for Customer to generate one or more API Keys (defined below), for the purpose of integrating third party applications with the Subscription Services. It is at Customer’s sole discretion whether or not to utilize APIs and if it does, Customer assumes full responsibility and liability for all API usage under its API Key(s). An “API Key” means a security key generated by Customer within the Subscription Services to access a certain API, serving as an identifier, username, and password combined. If Customer chooses to utilize APIs, it may designate one or more individuals as its API administrators (each, an “API Admin”) for each API Key. Customer and its API Admin(s) are responsible for maintaining the security and confidentiality of all API Keys and shall exercise appropriate security measures to safeguard each API Key. The API Admin(s) may disclose the relevant API Key(s) only to employees or authorized third parties (such as contractors) on a need-to-know basis only, provided that Customer may grant access to an API to a third party only after obtaining written permission from Awardco and such third party access specifically excludes access by customers or vendors of Customer unless expressly agreed to by Awardco. The API Admin(s) must keep an up-to-date log of individuals to whom each API Key is disclosed and ensure their familiarity with these terms. If an API Key is suspected or known to be compromised, the relevant API Admin must promptly deactivate the API Key and issue a new one. Awardco may also deactivate an API Key if a compromise is suspected. Upon expiration or termination of the Agreement or applicable Order Form, or in the event of a violation of these terms, access to all API Keys will expire or be automatically revoked.
2.6 AI Usage and Principles. Awardco may use systems powered by artificial intelligence (“AI”) within its internal business operations. Awardco will not use Customer Data or Customer Confidential Information to train, refine, or improve any third-party AI models, including large language models. Awardco has published or may publish certain optional AI-powered features to the Subscription Services, and to the extent Customer opts in to such AI-powered features, Customer agrees that Customer Data and Customer Confidential Information may be processed by those AI-powered features to provide the Services.
3. PAYMENT OF FEES AND REDEMPTIONS; ADDITIONAL ORDERS.
3.1 Fees. Customer will pay all fees specified in each Order Form (“Fees”) in accordance with the terms set forth in such Order Form and this SSA. Customer will pay the Fees to Awardco in the currency listed on the applicable Order Form. Except as expressly provided in the Agreement, payments are non-refundable and non-creditable, payment obligations are non-cancellable, and the Fees for all Subscription Services under an Order Form are a continuous and non-divisible commitment for the full duration of the Order Form Term (as defined below) and for the total number of then-permitted Authorized Users specified in the applicable Order Form(s) and invoice(s), regardless of billing frequency. Customer is not entitled to any refund or credit if the total active Authorized Users is at any time less than the total quantity of Authorized Users then-permitted.
3.2 Additional Authorized Users; True-Ups. Awardco may conduct periodic true-ups at any time during the applicable Order Form Term (defined below), generally on a quarterly basis. If upon each such true-up, the actual total number of Authorized Users exceeds the total quantity then-permitted under the applicable Order Form (such excess, “Additional Authorized Users”), then Awardco will issue an invoice and Customer will pay an additional fee for each such Additional Authorized User at the unit price per Authorized User then in effect under the applicable Order Form, prorated for the remainder of the then-current Order Form Term. If Customer is instead billed on a flat-fee basis, then upon each anniversary of the Order Form Term, Awardco will issue an invoice and Customer will pay an additional fee based on the difference between Customer’s initial budget amount set forth in the relevant Order Form and the amount actually distributed to its Authorized Users in the platform during the prior year of the relevant Order Form Term.
3.3 Taxes; Late Fees. All Fees are exclusive of all taxes and similar assessments, including sales and use tax, value-added tax (VAT), goods and services tax (GST), excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on Awardco’s income or payroll (“Taxes”). Customer is responsible to pay for all applicable Taxes and if Awardco is required to pay or collect Taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Awardco with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is overdue on any payment of any invoice for Fees that are not subject to a good faith dispute under Section 3.6 (Payment Disputes) and fails to pay within thirty (30) days of written notice, then Awardco may assess, and Customer agrees to pay, a late fee that is the lesser of 1.5% of the amount due per month or the maximum amount allowable by applicable law.
3.4 Redemptions. Customer must pay for all Redemptions and provide initial funding to the Redemption Account as set forth in the applicable Order Form, in the currency listed on the applicable Order Form. All invoices under Section 3.1 (Fees) will be separate and distinct from Redemption Account invoices under this Section 3.4 (Redemptions). Except as otherwise set forth in the applicable Order Form, if at any time during the Term Customer’s balance with Awardco for Redemptions is zero or negative, Awardco may in its sole discretion temporarily suspend any or all Redemptions until Customer’s balance is sufficient to cover ongoing and anticipated Redemptions. The Redemption Account is separate from Awardco’s own operating account(s), and Awardco will not use funds that Customer has provided to Awardco for Redemptions to pay for any of Awardco’s own operational expenses. Customer acknowledges and agrees that Customer’s funds in the Redemption Account are not covered by pass-through insurance. Customer may at any time request any or all of its unused funds provided by Customer for Redemptions to be returned to Customer, and Awardco will promptly return such funds, subject to Awardco’s rights under Section 4.3(b) (Effect of Termination). Customer is responsible for any product sales tax and any shipping costs for Redemptions. Certain Redemptions may be subject to additional terms of the corresponding Marketplace Partner for such Redemption(such as pre-paid cards or gift cards), and Awardco will provide Authorized Users a link to or disclosure of any such terms prior to Redemption. In connection with certain Redemptions, Customerac knowledges that Awardco may receive affiliate fees, rebates, discounts, and the like pursuant to its arrangements with Marketplace Partners.
3.5 Purchase Orders Issued by Customer. If Customer’s procurement process requires a purchase order and Customer issues to Awardco a purchase order for the Services, it must be for no less than the full amount set forth in the applicable Order Form, and Awardco hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by Customer. Upon Customer’s request, Awardco will reference Customer’s purchase order number on the applicable invoice, provided that Customer provides such purchase order number to Awardco upon entering into the corresponding Order Form. Customer’s failure to provide Awardco with its purchase order number will not relieve Customer of its obligations to provide payment to Awardco pursuant to this Section 3.
3.6 Payment Disputes. Customer may with hold from payment any charge or amount disputed by Customer reasonably and in good faith pending resolution of such dispute, provided that Customer: (a) notifies Awardco of the dispute within the agreed upon payment term period associated with such disputed invoice (“Disputed Payment Period”), specifying in such notice (i) the amount in dispute, and (ii) the reason for the dispute set out in sufficient detail to facilitate investigation by Awardco and resolution by the Parties; (b) works diligently with Awardco to resolve the dispute promptly; and (c) pays all amounts that are determined to be payable by resolution of the dispute (by adversarial proceedings, agreement, or otherwise) within fifteen (15) days following such resolution. For clarity, any undisputed amounts must be paid in full in accordance with this Section 3. Awardco reserves all rights and remedies with respect to any payment dispute that is not resolved within the Disputed Payment Period. Except as set forth in this Section 3.6, Customer cannot withhold, reduce, or set-off any amounts owed under this Section 3.
3.7 Suspension for Non-Payment. Awardco may suspend or limit any access or use of the Subscription Services or Awardco’s provision of the Professional Services if payment under the Agreement is overdue and outstanding, and/or unresolved as of the end of the Disputed Payment Period, and Customer fails to pay amounts due within ten (10) days of notice by Awardco.
3.8 Additional Orders. If at any time during the Term Customer desires configurations, support, trainings, subscriptions, or services of any kind outside the scope of the Order Form(s) then in effect, and Awardco agrees to provide the same to Customer, then the Parties will enter into an additional Order Form for Customer to order such items.
4. TERM AND TERMINATION.
4.1 Term. This SSA will begin on the date the Parties entered the initial Order Form, and continue in effect until the expiration or termination of the last Order Form Term hereunder, unless terminated sooner as provided herein (the “Term”). Multiple Order Forms may be in effect at any given time during the Term per Section 3.8 (Additional Orders). The term of each Order Form (including any renewals thereto, the “Order Form Term”) will begin on the effective date of such Order Form and, unless terminated sooner as provided in the Agreement, will continue until the later of: (a) the completion of all professional services purchased under such Order Form, and (b) the expiration of all subscription periods under such Order Form. Termination or expiration of any Order Form will leave other Order Forms unaffected. Customer cannot terminate the Agreement prior to its expiration, including any Order Form, except as expressly permitted by Section 4.2 (Termination for Cause).
4.2 Termination for Cause. Either Party may terminate the Agreement, or any Order Form, upon written notice to the other Party if the other Party: (a) commits a material breach or default in the performance of any of its obligations (including a failure to pay any amount due) under the Agreement or applicable Order Form and such breach or default, if curable, remains uncured thirty (30) days after its receipt of written notice of such breach or default; (b) ceases operation without a successor; or (c) becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership, or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement, or makes an assignment for the benefit of creditors.
4.3 Effect of Termination. If the Agreement or any Order Form expires or terminates for any reason, the rights granted to Customer herein and thereunder terminate, and upon such termination: (a) Customer must promptly (i) stop using the applicable Services and Documentation, and (ii) delete (or, at Awardco’s request, return) any Documentation and any of Awardco’s Confidential Information in Customer’s possession, custody, or control; and (b) Awardco will refund to Customer its remaining balance (if any) of funds provided to Awardco for Redemptions, less any amounts that have accrued before, and remain unpaid as of, the effective date of such expiration or termination, provided that nothing in this clause (b) will be construed to relieve Customer of its payment obligations if Customer’s remaining balance with Awardco for Redemptions is insufficient to cover such unpaid amounts. If Customer terminates the Agreement or any Order Form for cause pursuant to Section 4.2 (Termination for Cause), Customer will receive a pro-rata refund in the amount of (i) any Fees for Subscription Services it has pre-paid for the terminated portion of the applicable Order Form Term; and (ii) any pre-paid Fees for Professional Services not yet performed by Awardco as of the date of termination. Except where the Agreement specifies an exclusive remedy, all remedies under the Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a Party.
5. CONFIDENTIAL INFORMATION.
5.1 Confidentiality. Except as permitted by the Agreement, each Party (as the receiving Party) must keep, hold, and protect the other Party’s (as the disclosing Party) Confidential Information as strictly confidential to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. Each Party must not disclose any Confidential Information of the other Party to any person or entity other than its employees, contractors, agents, or representatives having a legitimate need to know (which, for Awardco, includes its subcontractors and Marketplace Partners), provided that the receiving Party remains responsible for its recipient’s compliance with the terms of this Section 5 and liable for any breach thereof, and that such recipients are bound to confidentiality obligations no less protective than this Section 5. Further, each Party shall only use the Confidential Information of the other Party as expressly permitted under the Agreement. For the avoidance of doubt, Confidential Information of Customer includes Customer Data, and Confidential Information of Awardco includes its policies and procedures, product roadmaps, and pricing. Confidential Information of either Party disclosed prior to execution of the Agreement will be subject to this Section 5. The provisions of this Section 5 will remain in effect during the Term and for a period of five (5) years after the expiration or termination thereof, except with respect to trade secrets of the disclosing Party, which will be held in confidence for as long as such information remains a trade secret.
5.2 Exclusions. The restrictions on use and disclosure of Confidential Information do not apply to any information of the disclosing Party that: (a) is or becomes generally available to the public through no fault of the receiving Party; (b) was known by the receiving Party free of confidentiality restrictions before it received the Confidential Information; (c) is rightfully obtained by the receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by the receiving Party without reference to or use of the disclosing Party’s ConfidentialInformation; or (e) the disclosing Party agrees in writing is free of confidentiality restrictions.
5.3 Permitted Disclosure. A Party may disclose the other Party’s Confidential Information to the extent required by: (a) law or court order, provided it gives advanced notice (if permitted by law)to the other Party to enable it to contest such order or requirement or limit the scope of such request, and reasonably cooperates in any such effort by the other Party; or (b) applicable securities regulations.
5.4 Remedies. The Parties acknowledge and agree that the receiving Party’s breach of this Section 5 may cause the disclosing Party substantial harm for which damages alone may be an insufficient remedy, and therefore on breach or threatened breach of this Section 5 the disclosing Party is entitled to seek appropriate equitable relief in addition to any other remedies it may have available hereunder or at law.
6. INTELLECTUAL PROPERTY RIGHTS.
6.1 Customer. Customer owns and retains: (a) Customer Data; (b) Customer’s name, logo, and other trademarks; (c) Customer’s Confidential Information; and (d) all Intellectual Property Rights of Customer in and to any of the foregoing.
6.2 Awardco. The Agreement is a term-limited agreement for access to and use of the Subscription Services. Customer acknowledges and agrees that under the Agreement it and its Affiliates and Authorized Users are obtaining only a limited right to access and use the Subscription Services and no ownership rights thereof are transferred to Customer or its Affiliates or Authorized Users, and Customer has no right to obtain a copy of the software behind or connected to or used to provide the Subscription Services. Awardco, its Affiliates, or its licensors or suppliers, as applicable, own and retain: (a) the Subscription Services, the Documentation, the Mobile Apps, and all other software, applications, equipment, infrastructure, inventions, know-how, concepts, and techniques related to the Subscription Services or developed or conceived by Awardco in connection with providing any Services, as well as all improvements, enhancements, modifications, updates, and contributions thereto and any derivative works of any of the foregoing; (b) the Analytics Data; (c) Awardco’s name, logo, and other trademarks; (d) Awardco’s Confidential Information; and (e) all Intellectual Property Rights in and to any of the foregoing. Awardco reserves all rights and licenses not specifically granted in the Agreement. Customer and its Affiliates and Authorized Users are free to provide any comments, suggestions for enhancements or functionality, or other feedback to Awardco with respect to the Services, provided that if any of them elect to do so Awardco will have the full, free, irrevocable, and unencumbered right to use and exploit the same in connection with the Services and its business, although Awardco is under no obligation to do so.
6.3 Publicity. Unless otherwise agreed in writing, neither Party will use the other Party’s name or logo, or refer to the identity of the other Party in promotional material, publications, or press releases or other forms of publicity relating to the Services. Notwithstanding the foregoing, during the Term: (a) Awardco may use Customer’s name and logo for the limited purpose of identifying Customer as a customer of the Services; and (b) Customer may use Awardco’s name and logo for the limited purpose of identifying Awardco as a service provider to Customer.
7. WARRANTY.
7.1 Performance Warranty. During the Term, Awardco warrants to Customer that (a) the Subscription Services identified on Customer’s Order Form(s) when used as authorized under the Agreement and Documentation will operate in substantial conformity with the descriptions set forth in the applicable Order Form and Documentation; and (b) the Professional Services identified on Customer’s Order Form will be provided in a professional and workmanlike manner in accordance with generally accepted industry standards for similar services (collectively, the “Performance Warranty”). Customer must notify Awardco in writing within thirty (30) days of discovery of a breach of the Performance Warranty and include a detailed description. If Awardco receives a valid warranty claim within this period, it will use commercially reasonable efforts in its discretion to repair the affected portion of the Services or re-perform the Services (as applicable), or if Awardco determines this remedy is not commercially reasonable, either Party may terminate the applicable Order Form upon written notice to the other Party. Upon such termination, Customer will receive a pro-rata refund in the amount of (i) any Fees for Subscription Services it has pre-paid for the terminated portion of the applicable Order Form Term; and (ii) any pre-paid Fees under the terminated Order Form for Professional Services not yet performed by Awardco as of the date of termination. To the extent permitted by law, the remedy in this Section 7.1 will be Customer’s sole and exclusive remedy, and Awardco’s sole liability, for any breaches of the Performance Warranty. Notwithstanding the foregoing, the Performance Warranty does not apply to or cover, and Awardco will not be responsible for: (1) errors in or resulting from Third-Party Products or Customer Data; (2) Customer’s misuse of or failure to comply with the Documentation; (3) modifications to the Subscription Services by anyone other than Awardco, or services provided by anyone other than Awardco or its subcontractors or Marketplace Partners acting at Awardco’s direction; or (4) Customer’s or any Authorized User’s breach or default in the performance of any of Customer’s obligations (including a failure to pay Fees) under the Agreement or any Order Form.
7.2 Mutual Warranties. During the Term, each Party warrants to the other that it (a) has the appropriate rights and authority to enter into the Agreement; (b) will comply with all laws applicable to its performance under the Agreement, including all applicable export control laws; (c) is not on any government list of prohibited or restricted parties or located in (or a national of) a country subject to a government embargo or that has been designated by the government as a “terrorist supporting” country; and (d) will not, and in the case of Customer will ensure its Authorized Users or others under its control do not, take any action under the Agreement or use the Subscription Services in breach of any anti-money laundering, anti-corruption, and/or counter-terrorist financing laws.
7.3 Disclaimers. EXCEPT FOR THE PERFORMANCE WARRANTY AS EXPRESSLY SET FORTH ABOVE IN THIS SSA, THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITH “ALL FAULTS”, AND TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER AWARDCO, ITS AFFILIATES, SUBCONTRACTORS, MARKETPLACE PARTNERS NOR ITS SUPPLIERS MAKE ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ANY AND ALL CONDITIONS, WARRANTIES, AND OTHER TERMS (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW), INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, PERFORMANCE, OR USAGE OF TRADE. AWARDCO DOES NOT WARRANT THAT THE SERVICES WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE RESULTS OBTAINED WILL BE ACCURATE OR RELIABLE, THAT (WITHOUT PREJUDICE TO THE PERFORMANCE WARRANTY ABOVE) THE SERVICES ARE WITHOUT DEFECT OR ERROR, OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED. THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT.
8. INDEMNIFICATION.
8.1 Indemnification by Awardco. Awardco will defend Customer, its Affiliates, and their respective officers, directors, employees, agents, successors, and permitted assigns (“Customer Indemnitees”) from and against any claim, suit, action, or proceeding brought by a third party against any Customer Indemnitee alleging that the Subscription Services, as provided by Awardco and when used as authorized under the Agreement, infringe or violate any Intellectual Property Rights of such third party (“IP Claim”). In addition, Awardco will indemnify Customer Indemnitees against any damages, expenses, penalties, fees (including reasonable attorneys’ fees) and costs finally awarded against any Customer Indemnitee or agreed to in settlement by Awardco resulting from such third-party claims. In response to any actual or potential IP Claim, Awardco may at its option: (a) procure a license for the affected portion of the Subscription Services; (b) replace or modify the Subscription Services so as to avoid infringement or violation but be materially equivalent; or (c) terminate the Order Form for the affected Subscription Services and issue to Customer a pro-rata refund in the amount of any Fees for Subscription Services it has pre-paid for the terminated portion of the applicable Order Form Term. Notwithstanding the foregoing, Awardco’s obligations under this Section 8 do not apply if the claim results from: (i) Customer’s breach of the Agreement, including Section 1.3 (Acceptable Use Policy); (ii) Customer Data or other content, information or materials provided by Customer; (iii) modification of the Subscription Services by anyone other than Awardco or its subcontractors or Marketplace Partners acting at Awardco’s direction; or (iv) Third-Party Products. This Section 8.1 states the sole and exclusive remedy of Customer and the entire liability of Awardco or any of its suppliers, officers, directors, employees, shareholders, contractors, subcontractors, Marketplace Partners, or representatives, with respect to any IP Claim.
8.2 Indemnification by Customer. Customer will defend, indemnify, and hold harmless Awardco, its Affiliates, its subcontractors, its Marketplace Partners, and their respective officers, directors, employees, agents, successors, and permitted assigns (“Awardco Indemnitees”) from and against any claim, suit, action, or proceeding brought by a third party against any Awardco Indemnitee alleging that any Customer Data infringes or violates any Intellectual Property Rights of a third party, or arising from Customer’s breach of its obligations under Section 1.3 (Acceptable Use Policy) or Section 2.2 (Customer Data). In addition, Customer will indemnify Awardco Indemnitees against any damages, expenses, penalties, fees (including reasonable attorneys’ fees) and costs finally awarded against any Awardco Indemnitee or agreed to in settlement by Customer that result from such third-party claims.
8.3 Procedures. Each indemnifying Party’s defense and indemnification obligations in this Section 8 are subject to the indemnifying Party receiving: (a) prompt written notice of the claim from the indemnitee; (b) the exclusive right to control and direct the investigation and defense of such claim; and (c) all reasonably necessary cooperation of the indemnitee at the indemnifying Party’s expense (as to reasonable out-of-pocket costs). Any settlement of any such claim by the indemnifying Party must not include a financial or specific performance obligation on, or admission of liability by, the indemnitee without the prior written consent of such indemnitee. The indemnitee may participate in such claim through legal counsel of its own choosing at its own expense. The indemnifying Party shall have no obligation or liability under this Section 8 for or with respect to any settlement of such claim entered into by the indemnitee without the express prior written consent of the indemnifying Party.
9. LIMITATIONS OF LIABILITY.
9.1 Waiver of Certain Damages. To the fullest extent permitted by applicable law, except for Excluded Claims (as defined below), neither Party (nor its respective Affiliates or Awardco’s subcontractors or Marketplace Partners) will be liable under or in connection with the Agreement for any indirect, incidental, consequential, special, exemplary, or punitive damages whatsoever, including, without limitation, for loss of production, use, business profits, revenues, or goodwill.
9.2 Liability Cap. To the fullest extent permitted by applicable law, except for Excluded Claims (as defined below and for which there is no liability cap), the maximum liability of either Party (and its respective Affiliates and Awardco’s subcontractors and Marketplace Partners) under or in connection with the Agreement (whether in contract, tort, negligence, or breach of statutory duty) shall not exceed in the aggregate the total Fees paid or payable by Customer to Awardco for the Services in the twelve (12) month period immediately preceding the first event giving rise to the claim.
9.3 Excluded Claims. Notwithstanding the foregoing in this Section 9, nothing herein will waive any specific type of damages or limit liability for any Excluded Claims. The term “Excluded Claim” means: (a) any amounts payable by Awardco pursuant to its indemnification obligations for IP Claims under Section 8.1 (Indemnification by Awardco); (b) any amounts payable by Customer pursuant to its indemnification obligations under Section 8.2 (Indemnification by Customer); (c) any failure by Customer to pay any amounts due under the Agreement; (d) Customer’s or its Affiliates’ breach of Section 1.3 (Acceptable Use Policy); (e) a Party’s gross negligence, fraud, or willful misconduct or willful default; and (f) either Party’s liability for any loss or damage which it is not possible to limit or exclude by law.
9.4 Risk Allocation. Each Party acknowledges and agrees that this entire Section 9 is a fundamental basis of the bargain and a reasonable allocation of risk between the Parties and will survive and apply to any claims arising out of or related to the Agreement and any Services, regardless of the theory of liability (whether in contract, tort, strict liability or otherwise), even if any limited liability remedy in the Agreement is found to have failed its essential purpose.
10. GENERAL.
10.1 Relationship of the Parties. The Parties are independent contractors. The Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship between the Parties. Neither Party has the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent. Nothing in the Agreement confers on any third party the right to enforce any provision of the Agreement.
10.2 Assignment. The Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. Neither Party may assign the Agreement without the other Party’s advanced written consent, except that either Party may assign the Agreement: (a) to its Affiliate(s); and (b) in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities, provided that the assignee (i) is not insolvent or otherwise unable to pay its debts as they become due, and (ii) is bound hereby. Any attempt to transfer or assign the Agreement (including any Order Form) except as authorized under this Section 10.2 will be void.
10.3 Notices. All notices or communications under the Agreement must be in writing. Customer must send any notices under the Agreement (including breach notices and warranty and indemnity claims) to Awardco, in English to legal@awardco.com with a physical copy sent to Awardco, Inc. at 2080 W 400 N, Lindon, UT 84042, Attn: Legal Department. Awardco may send notices to the email address for Customer’s designated representative(s) or to Customer’s last-known postal address. Neither Party is responsible for any automatic filtering that it or its network provider may apply to email notifications. Any notice delivered or made by messenger, electronic mail, or postal mail will be deemed to be given on the date of actual delivery as shown by messenger receipt, or other verifiable electronic receipt, or the registry or certification receipt.
10.4 Force Majeure. Any delay in performance (other than for the payment of amounts due) under the Agreement due to causes beyond the reasonable control of the performing Party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, epidemic, pandemic, failure or reduction of power or telecommunications or data networks or services, or government act, is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.
10.5 Severability. If any provision of the Agreement is found by any court of competent jurisdiction to be illegal, unenforceable, or invalid, that provision will be limited to the minimum extent necessary so that the Agreement may otherwise remain in full force and effect.
10.6 Waiver. No waiver of any provision of the Agreement will be effective unless in writing and executed by an authorized representative of the waiving Party. Waiver by either Party of any breach or default of the Agreement is not deemed a waiver of any other breach or default.
10.7 Survival. The following sections of this SSA survive any expiration or termination of the Agreement: the attached Definitions; Section 2.3 (Analytics Data); Section 3 (Payment of Fees andRedemptions; Additional Orders); Section 4.3 (Effect of Termination); Section 5 (Confidential Information); Section 6 (Intellectual Property Rights); Section 7.3 (Disclaimers); Section 8 (Indemnification); Section 9 (Limitations of Liability); Section 10 (General); and any other section or provision that by its nature is intended to survive any expiration or termination of the Agreement.
10.8 Governing Law. The Agreement and any claims related to its subject matter will be governed by the laws of the State of Utah, without references to its conflicts or choice of law principles. Any legal action or proceeding between the Parties relating to the Agreement will be brought exclusively in the United States District Court for the District of Utah or the state courts located in Salt Lake City, Utah, and both Parties submit to the personal jurisdiction of, and agree that venue is proper in, these courts. The Uniform Computer Information Transaction Act (where enacted) and the UnitedNations Convention on Contracts for the Sale of Goods do not apply to the Agreement.
10.9 Third Parties. Nothing in the Agreement confers any right on any person that is not a party to the Agreement.
10.10 Entire Agreement. The Agreement, which includes the attached Definitions, constitutes the complete and exclusive agreement between the Parties concerning its subject matter. The Agreement supersedes all prior or contemporaneous oral or written communications, slide decks, proposals, presentations, comments, statements, and representations with respect to the Services or any other subject matter covered by the Agreement. The Agreement, including any Order Form, maybe changed only by a written agreement signed by an authorized representative of both Parties. In the event of a conflict between this SSA and an Order Form, this SSA will control unless there is a “Special Terms” section in the applicable Order Form that clearly specifies that the text in such section modifies this SSA.
DEFINITIONS
As used in the Software as a Service Agreement above, the following terms have the following respective meanings:
“Affiliate” means a legal entity that controls, is controlled by, or is under common control with a Party, where “control” means possessing the power to direct the management, policies, or operations of an entity, directly or indirectly, whether through ownership of voting securities, by contract, or otherwise.
“Authorized User” means an individual who is an employee or contractor of Customer or its Affiliates and to whom Customer or its Affiliate(s) or Awardco, as applicable, grants access authorization to use the Subscription Services.
“Confidential Information” means any technical, business, or financial information disclosed by one Party to the other Party that the disclosing Party identifies as confidential or proprietary at the time of disclosure, or that a person exercising reasonable business judgment would understand to be confidential or proprietary given the nature of the information and the circumstances surrounding its disclosure.
“Customer Data” means any data, content, materials, or information, in each case including Personal Data, that Authorized Users, Customer, and/or Customer’s Affiliate(s) input or upload into Awardco’s cloud-based web platform or otherwise provide to Awardco.
“Documentation” means Awardco’s then-current technical and functional documentation, in all forms, for the Services as generally made available by Awardco.
“Illegal or Harmful Content” means any data, content, materials, or information that is obscene, threatening, menacing, offensive, defamatory, abusive, causes annoyance, inconvenience, or needless anxiety, contains expressions of bigotry, racism, racially or ethnically offensive content, hate speech, abusive content, vulgarity or profanity, contains or advocates pornography or sexually explicit content or child sexual abuse, or that is otherwise obscene or lewd, advocates violent behaviour or poses a threat to personal or public safety, is harmful to children, is in breach of confidence, in breach of any intellectual property right (including, without limitation, copyright) or any other right of any person, or otherwise is in breach of or violates any applicable law or regulation or code.
“Intellectual Property Rights” means any current and future intellectual property rights and any analogous intangible rights and privileges, including copyrights, trademarks, trade names, domain names, rights in logos and get-up, inventions, confidential information, trade secrets and know-how including commercial know-how, design rights, patents, utility models, all rights of whatsoever nature in computer software and data, rights in databases, privacy rights, and any rights and privileges related to any of the above, whether or not registered.
“Marketplace Partners” means the various third-party partners of Awardco (such as Amazon.com) who collectively make up an online marketplace of Redemption options for Authorized Users and who may also provide fulfillment and related services with respect to such Redemptions.
“Mobile Apps” means Awardco’s downloadable application(s), if any, that are designed to provide mobile access to, and which may extend or supplement the functionality of, the Subscription Services.
“Order Form” means any Awardco order form, ordering documentation, online sign-up, or subscription flow that references or otherwise incorporates this SSA, sets forth pricing (if applicable) and the Services selected by Customer, and is accepted and agreed to by the Parties, in each case including any addenda, schedules, supplements, or statements of work thereto.
“Personal Data” means any information that is considered “personal information,” “personal data,” or “personally identifiable information,” or any functional equivalent of these terms under any applicable laws relating to data privacy, data protection, or cybersecurity.
“Professional Services” means the professional services ordered under an Order Form, which services may include, without limitation, implementation, configuration, consulting, training, and corporate gifting.
“Redemption Account” means one or more non-interest bearing commercial checking accounts in Awardco’s name, into which funds from Awardco’s customers are deposited and used to process and pay for Redemptions and certain Professional Services. Funds from the Redemption Account may be transferred by Awardco to liquid, low-risk investments (such as U.S. government backed treasuries) in Awardco’s name, and any interest or other amounts earned in connection therewith will be retained by Awardco.
“Redemptions” means all products and services redeemed through the Subscription Services under Authorized Users’ accounts.
“Services” means, collectively, the Subscription Services, Professional Services, and any other services ordered under an Order Form.
“Subscription Services” means Awardco’s cloud-based web platform delivered and accessible through www.awardco.com on a subscription basis, or any other subscription services provided by Awardco, in each case as ordered by Customer under an Order Form or otherwise provided to Customer by Awardco.
“Third-Party Product” means any content, documentation, applications, integrations, software, code, online services, systems, or other products not developed by Awardco.
