TIP HAUS INC.
END USER TERMS AND SAAS AGREEMENT
1. SERVICES AND SUPPORTa. Access. Subject to the terms of this Agreement, Company hereby grants Customer,and each user authorized by Customer (“Authorized User”), a non-exclusive, non-transferable right to access and use the Services as set forth in Attachment A, duringthe Term, as defined further below. As part of the registration process, Customerwill identify an administrative username and password for Customer’s companyaccount, and each Authorized User will identify a separate administrative usernameand password for such Authorized User’s user account. Each Authorized User shallaccept the end user terms and conditions as prompted by the registration process(“End User Terms”) prior to accessing the Services.
b. Support. Company has and will retain sole control over the operation, provision,maintenance, and management of the Services. Subject to the terms hereof,Company will provide Customer with reasonable technical support services asfollows (collectively, the “Support Services”):
i. Support Availability. Support Services will be provided via telephone, e-mail,and/or screen share assistance, as necessary, Monday through Friday from9am Pacific Standard Time to 5pm Pacific Standard Time, excluding U.S.federal holidays.
ii. Service Levels. Support Services will be provided in accordance with thefollowing “Service Levels” based on the Severity Level of the support issue (asdefined below in subsection (iii)):
1. Severity Level A: Response within 3 Hours2. Severity Level B: Response within 24 Hours3. Severity Level C: Response within 48 Hoursiii. Severity Levels. Severity levels are defined as follows (“Severity Levels”):
1. Severity Level A: A technical issue with the Service is preventing thetimely payout of wages to Customer employees and falling within 48hours of when payroll is due.
2. Severity Level B: Issues relating to the Customer dashboard.
3. Severity Level C: Issues relating to the employee portal and all otherissues.
c. Reservation of Rights. Company may, directly or indirectly, and by use of any lawfulmeans, suspend, terminate, or otherwise deny Customer's access to or use of all orany part of the Services without incurring any resulting obligation or liability, if: (a)Company receives a judicial or other governmental demand or order, subpoena, orlaw enforcement request that expressly or by reasonable implication requiresCompany to do so; or (b) Company believes, in its sole discretion, that: (i) Customerhas failed to comply with any term of this Agreement, including paymentobligations, or accessed or used the Services beyond the scope of the rights grantedor for a purpose not authorized under this Agreement or in any manner that doesnot comply with any instruction or requirement related to the Services; (ii) Customeris, has been, or is likely to be involved in any fraudulent, misleading, or unlawfulactivities relating to or in connection with any of the Services; or (iii) this Agreementis terminated. This Section does not limit any of Company’s other rights or remedies,whether at law, in equity, or under this Agreement. Company reserves the right, inits sole discretion, to make any changes to the Services that it deems necessary oruseful to: (a) maintain or enhance: (i) the quality or delivery of Company’s servicesto its customers; (ii) the competitive strength of or market for Company’s services;or (iii) the Services' cost efficiency or performance; or (b) to comply with applicablelaw.
d. Customer Delay. Company is not responsible or liable for any delay or failure ofperformance caused in whole or in part by Customer's delay in performing, or failureto perform, any of its obligations under this Agreement.
2. IMPLEMENTATION SERVICESa. Implementation. Company will provide the implementation services pursuant to thisAgreement as set forth in the Order Form attached hereto as Attachment A (the“Implementation Services”). Any changes to the Implementation Services or relatedterms and conditions shall be effective only upon the mutual execution of a changeorder to the Order Form, which sets forth the changes and any adjustments to thefees as agreed by the Parties.
b. Acceptance. Customer shall be deemed to have accepted the ImplementationServices, in whole or on in part, five (5) days following the date of performance ofthe Implementation Services. Following the expiration of that five (5) day period, the
Implementation Services shall be deemed accepted and Company shall have nofurther liability to Customer with respect to those Implementation Servicesthereafter.
3. RESTRICTIONS AND RESPONSIBILITIES OF CUSTOMERa. Restrictions. Customer, and its Authorized Users, will not, directly or indirectly, andwill not permit any person to: (i) access or use the Services except as expresslypermitted by this Agreement; (ii) reverse engineer, decompile, disassemble orotherwise attempt to discover the source code, object code or underlying structure,ideas, know-how or algorithms relevant to the Services or any software,documentation or data related to the Services (“Software”), or access the Services orSoftware for purposes of building competing software or performing any benchmarktesting or similar analysis of the Services or Software; (iii) modify, translate, or createderivative works based on the Services or any Software (except to the extentexpressly permitted by Company or authorized within the Services); (iv) rent, lease,lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise makeavailable any Software or Services to third parties, or use the Services or anySoftware for timesharing or service bureau purposes or otherwise for the benefit ofa third; (v) input, upload, transmit, or otherwise provide to or through the Services,any information or materials that are unlawful or injurious, or contain, transmit, oractivate any harmful code; (vi) damage, destroy, disrupt, disable, impair, interferewith, or otherwise impede or harm in any manner the Services; or (vii) remove anyproprietary notices or labels. With respect to any Software that is distributed orprovided to Customer for use on Customer premises or devices, Company herebygrants Customer a non-exclusive, non-transferable, non-sublicensable, revocablelicense to use such Software during the Term only in connection with the Services.
b. Export Control. Customer may not remove or export from the United States or allowthe export or re-export of the Services, Software or anything related thereto, or anydirect product thereof in violation of any restrictions, laws or regulations of theUnited States Department of Commerce, the United States Department of TreasuryOffice of Foreign Assets Control, or any other United States or foreign agency orauthority.
c. Equipment. Customer shall be responsible for obtaining and maintaining anyequipment and ancillary services needed to connect to, access or otherwise use theServices, including, without limitation, modems, hardware, servers, software,operating systems, networking, web servers and the like (collectively, “Equipment”).Customer shall also be responsible for maintaining the security of the Equipment,Customer account, passwords (including but not limited to administrative and user
passwords) and files, and for all uses of Customer account or the Equipment with orwithout Customer’s knowledge or consent.
4. CONFIDENTIALITY
a. Confidential Information. Each Party (the “Receiving Party”) understands that theother Party (the “Disclosing Party”) has disclosed or may disclose non-publicbusiness, technical or financial information relating to the Disclosing Party’s business(“Confidential Information”). Confidential Information of Company includes, but isnot limited to, non-public information regarding features, functionality andperformance of the Service, as well as all data acquired, developed, or provided byCompany, including data that is based on or derived from Customer Data, as definedbelow (“Company Data”). Confidential Information of Customer includes, but is notlimited to, names and e-mail addresses of Authorized Users and non-public dataprovided by Customer to Company to enable the provision of the Services(“Customer Data”).
b. Non-use and Nondisclosure. The Receiving Party agrees: (i) to take reasonableprecautions to protect Confidential Information, and (ii) not to use (except inperformance of the Services or as otherwise permitted herein) or divulge to anythird person any such Confidential Information. The Disclosing Party agrees that theforegoing shall not apply with respect to any information after five (5) yearsfollowing the disclosure thereof or any information that the Receiving Party candocument (i) is or becomes generally available to the public, or (ii) was in itspossession or known by it prior to receipt from the Disclosing Party, or (iii) wasrightfully disclosed to it without restriction by a third party, or (iv) wasindependently developed without use of any Confidential Information of theDisclosing Party or (v) is required to be disclosed by law.
5. OWNERSHIP AND PROPRIETARY RIGHTS
a. Company Ownership. Company owns and shall retain all right, title, and interest inand to (a) the Services and Software, and all improvements, enhancements ormodifications thereto, (b) any software, applications, inventions or othertechnology, and all improvements, enhancements or modifications thereto,developed in connection with Implementation Services or the provision of SupportServices, (c) all Company Data and (d) all intellectual property rights related to any ofthe foregoing. No rights or licenses are granted except as expressly set forth in thisAgreement.
b. Customer Ownership. Customer owns and shall retain all right, title, and interest inand to all Customer Data. Notwithstanding anything to the contrary, Company shallhave the right to collect and analyze data and other information relating to theprovision, use and performance of various aspects of the Services and relatedsystems and technologies (including, without limitation, information concerningCustomer Data and data derived therefrom). Customer grants Company anonexclusive, perpetual, irrevocable license to (i) use Customer Data as necessary oruseful to Company to enforce this Agreement and exercise Company’s rights andperform Company’s obligations hereunder, and (ii) use Customer Data fordevelopment, improvement, enhancement, diagnostic, corrective, and relatedpurposes in connection with the Services and other Company offerings.
6. FEES, INVOICING, AND PAYMENT
a. Fees. Customer will pay Company the applicable fees described in the Order Formon Attachment for the Services and the Implementation Services in accordance withthe terms therein (the “Fees”). If Customer’s use of the Services exceeds the Servicecapacity set forth on the Order Form or otherwise requires the payment ofadditional fees (per the terms of this Agreement), Customer shall be billed for suchusage and Customer agrees to pay the additional fees in the manner providedherein. Company reserves the right to change the Fees or applicable charges and toinstitute new charges and Fees at the end of the Initial Service Term or then currentrenewal term, upon thirty (30) days prior notice to Customer (which may be sent byemail). If Customer believes that Company has billed Customer incorrectly,Customer must contact Company no later than 60 days after the closing date on thefirst billing statement in which the error or problem appeared, in order to receive anadjustment or credit.
b. Invoicing and Payment. Company may choose to bill through an invoice, in whichcase, full payment for invoices issued in any given month must be received byCompany thirty (30) days after the mailing date of the invoice. Unpaid amounts aresubject to a finance charge of 1.5% per month on any outstanding balance, or themaximum permitted by law, whichever is lower, plus all expenses of collection andmay result in immediate termination of Services. Customer shall be responsible forall taxes associated with Services other than U.S. taxes based on Company’s netincome.
7. TERM AND TERMINATIONa. Term and Renewal. Subject to earlier termination as provided below, this Agreementis for the Initial Service Term as specified in the Order Form, and shall be
automatically renewed for additional periods of the same duration as the InitialService Term (collectively, the “Term”), unless either party requests termination atleast thirty (30) days prior to the end of the then-current term.
b. Termination. In addition to any other remedies it may have, either Party may alsoterminate this Agreement immediately if the other Party materially breaches any ofthe terms or conditions of this Agreement and is unable to cure such breach withinthirty (30) days of being notified thereof. Customer will pay in full for the Servicesand Implementation Services up to and including the last day on which such servicesare provided. All sections of this Agreement which by their nature should survivetermination will survive termination, including, without limitation, accrued rights topayment, confidentiality obligations, warranty disclaimers, and limitations ofliability.
8. WARRANTIES AND DISCLAIMERa. Customer Representations and Warranties. Customer represents and warrants thatCustomer will use the Services only in compliance with (i) this Agreement, (ii)Company’s standard published policies then in effect, and (iii) all applicable laws andregulations. Although Company has no obligation to monitor Customer’s use of theServices, Company may do so and may prohibit any use of the Services it believesmay be (or alleged to be) in violation of the foregoing.
b. Company Representations and Warranties. Company represents and warrants that it(i) shall use reasonable efforts consistent with prevailing industry standards tomaintain the Services in a manner which minimizes errors and interruptions in theServices and (ii) shall perform the Implementation Services in a professional andworkmanlike manner. Services may be temporarily unavailable for scheduledmaintenance or for unscheduled emergency maintenance, either by Company or bythird-party providers, or because of other causes beyond Company’s reasonablecontrol, but Company shall use reasonable efforts to provide advance notice inwriting or by e-mail of any scheduled service disruption.
c. DISCLAIMER. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BEUNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THERESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT ASEXPRESSLY SET FORTH IN THIS SECTION 8, THE SERVICES, SUPPORT SERVICES, ANDIMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALLWARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIEDWARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,TITLE, AND NON-INFRINGEMENT.
9. INDEMNITYCustomer hereby agrees to indemnify and hold harmless Company against any damages, losses,liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) inconnection with any claim or action that arises from an actual or alleged violation of Customer’srepresentations and warranties set forth in Section 8, or otherwise from Customer’s use ofServices, including specifically any claims by Customer’s Authorized Users in connection withtheir use of the Services and the results obtained thereby.
10. LIMITATION OF LIABILITYNOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY AND ITS SUPPLIERS, OFFICERS,AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLEOR LIABLE WITH RESPECT TO ANY CLAIM OR LOSS RELATED TO THE SUBJECT MATTER OF THISAGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT,NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USEOR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OFSUBSTITUTE SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT,EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTERBEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHERWITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMERTO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THEEVENT THAT GAVE RISE TO THE LIABILITY, IN NO EVENT TO EXCEED $100,000.00 USD,WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. MISCELLANEOUSa. Independent Contractor. Company is an independent contractor of Customer andnot an employee, agent, or representative of Customer. Nothing herein containedshall be construed to create a joint venture by the Parties. Customer does not haveany authority of any kind to bind Company in any respect whatsoever.
b. Force Majeure. Notwithstanding any other provision of this Agreement, no Partyshall be deemed in default or breach of this Agreement or liable for any loss ordamages or for any delay or inability to perform its obligations under this Agreementor SOW if the delay or inability arises from any cause beyond the reasonable controlof that Party (each, a “Force Majeure Event”). If a delay continues for sixty (60) daysor more, the Party not experiencing the Force Majeure Event may terminate theimpacted SOW upon written notice to the other Party.
c. No Publicity. Neither Party shall use the other Party’s name or mark in anyadvertising, written sales promotion, press releases, or other publicity mattersrelating to this Agreement without the other Party’s written consent.Notwithstanding the preceding sentence, Company may list Customer’s name andlogo, for internal purposes, prospective customer presentations, and on a customerlist that it provides to prospective clients of its products or services.
d. Severability. If any provision of this Agreement is found to be unenforceable orinvalid, that provision will be limited or eliminated to the minimum extent necessaryso that this Agreement will otherwise remain in full force and effect andenforceable.
e. Assignment. This Agreement is not assignable, transferable or sublicensable byCustomer except with Company’s prior written consent. Company may transfer andassign any of its rights and obligations under this Agreement without consent.
f. Entire Agreement. This Agreement is the complete and exclusive statement of themutual understanding of the parties and supersedes and cancels all previous writtenand oral agreements, communications and other understandings relating to thesubject matter of this Agreement.
g. Waivers. No waiver of any term, condition or obligation of this Agreement is validunless made in writing and signed by the Party to which such performance is due.No failure or delay by any Party at any time to enforce one or more of the terms,conditions or obligations of this Agreement: (i) constitutes waiver of such term,condition or obligation; (ii) precludes such Party from requiring performance by theother Party at any later time; or (iii) is deemed to be a waiver of any othersubsequent term, condition or obligation, whether of like or different nature.h. Modifications. Any modification to this Agreement must be in writing and signed byduly authorized representatives of each Party.
i. Dispute Resolution. If a dispute arises between the Parties in connection with thisAgreement (a "Dispute"), including without limitation any Dispute arising out of anymonetary amount due to a Party hereto, but expressly excluding any breach forwhich this Agreement designates a cure period and applicable rights and remedies,then, prior to bringing any suit, action or proceeding in connection with suchDispute, a Party must first give written notice of the Dispute to the other Partydescribing the Dispute and requesting it be resolved pursuant to the disputeresolution process (the "Dispute Notice") under this Section 11(i). If the Parties areunable to resolve the Dispute within thirty (30) days of delivery of the Dispute
Notice, then each Party shall promptly (but no later than ten (10) days thereafter):
(i) appoint a designated representative who has sufficient authority to settle theDispute and who is at a higher management level than the person with directresponsibility for the administration of this Agreement (the "DesignatedRepresentative"); and (ii) notify the other Party in writing of the name and contactinformation of such Designated Representative. The Designated Representativesshall then meet as often as they deem necessary to discuss the Dispute andnegotiate in good faith to resolve the Dispute. Each Party shall honor all reasonablerequests of the other Party for relevant information relating to the Dispute. If theParties are unable to resolve the Dispute within sixty (60) days after theappointment of both Designated Representatives, then either Party may proceedwith any other available remedy, whether under this Agreement, or at law or inequity.
j. Governing Law; Jurisdiction and Venue; Attorney Fees; Jury Waiver. This Agreementand the rights and obligations of the Parties (including, without limitation, alldisputes arising out of or relating to this Agreement or the subject matters of thisAgreement) is subject in all respects to the laws of the State of Washington, withoutregard to any rules governing conflict of laws. Exclusive jurisdiction over and venueof any suit or action arising out of or relating to this Agreement is the federal courtor state court in Seattle, King County, Washington. Each Party irrevocably submitsto personal jurisdiction and venue in such courts and waives all objections to venueor jurisdiction of such courts. A final judgment in any such suit or action may beenforced in other jurisdictions by suit on the judgment or in any other mannerprovided by law. The prevailing Party in any formal dispute arising out of or relatingto this Agreement is entitled to reasonable attorneys’ fees and costs (includingreasonable expert fees and costs), unless the prevailing Party rejected a writtensettlement offer that exceeds the prevailing Party’s recovery. EACH PARTYIRREVOCABLY AND UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY TRIAL IN ANYCOURT ACTION ARISING BETWEEN THE PARTIES, WHETHER UNDER THISAGREEMENT OR OTHERWISE RELATED TO THIS AGREEMENT, AND WHETHER MADEBY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR OTHERWISE. THE AGREEMENTOF EACH PARTY TO WAIVE ITS RIGHT TO A JURY TRIAL IS BINDING ON ITSSUCCESSORS AND ASSIGNS.
k. Notices. All notices under this Agreement will be in writing and will be delivered toeach Party’s respective address set forth in the preamble above, and will be deemedto have been duly given when received, if personally delivered; the day after it issent, if sent for next day delivery by recognized overnight delivery service; and uponreceipt, if sent by certified or registered mail, return receipt requested.
l. Counterparts. This Agreement may be signed in any number of counterparts, whichmay be transmitted by PDF, all of which taken together constitute one and the sameinstrument.
