SaaS Terms

SOFTWARE AS A SERVICE AGREEMENT 

            PLEASE READ THIS SOFTWARE AS A SERVICE AGREEMENT (THE “AGREEMENT”) BEFORE ACCESSING OR USING MAIDATA’S SERVICES. BY ACCESSING OR USING MAIDATA APPLICATIONS AND SERVICES (DESCRIBED IN SCHEDULE A), YOU (THE “CUSTOMER”) AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT. IF THE CUSTOMER AND MAIDATA HAVE A PRIOR EXISTING CONTRACT IN PLACE FOR THE CUSTOMER’S USAGE OF MAIDATA APPLICATIONS AND SOFTWARE, THAT PRIOR EXISTING CONTRACT WILL SUPERSEDE THE TERMS OF THIS AGREEMENT, EVEN IF THE CUSTOMER CLICKS THROUGH TO ENTER INTO THIS AGREEMENT.

            This Software as a Service (“SaaS”) Agreement (the “Agreement”) is between maiData Corporation, a California corporation (the “maiData”) and the Customer and is dated the date that maiData accepts this Agreement from the Customer, signified by giving access to maiData’s applications and services, including the software developed by maiData (“maiLink software”), as referenced in Schedule A (collectively, the “Applications” and individually, an “Application”). This Agreement, including the schedules attached to it, is for the right of the Customer to access maiData Applications.

1. Applications, Services and Customer Restrictions

1.1. Authorization. maiData authorizes the Customer to access and use the Application as defined in Schedule A for the term set forth in section 5. This authorization is non-exclusive and non-transferable.

1.2. Authorization Limitations and Restrictions. The Customer is not limited in the number of authorized Company employee or authorized agent users who can access the Application. The Customer is not limited in the number of device types that Customer can use, the number of product instances that Customer can deploy containing the maiLink agent, or the number of messages that the Customer-deployed maiLink agents can send or receive, but agrees to pay for such uses in accordance with this Agreement.

1.3. During the term of this Agreement, the Customer can, solely for the purpose of remotely accessing the Customer product using maiLink software:

1.3.1. Make unaltered copies of the maiLink agent software for installation, integration and use in the Customer product;

1.3.2. Make unaltered copies of the maiLink client software for use by Customer employees and authorized agents.

1.4. The Customer will not, and will not permit any other person to, access or use the Application except as expressly permitted by this Agreement. Specifically, the Customer will not:

1.4.1. Modify or create derivative works or improvements of the Application;

1.4.2. Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available Application to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;

1.4.3. Reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Application, in whole or in part;

1.4.4. Bypass or breach any security device or protection used by the Application or access or use the Application other than by an authorized user;

1.4.5. Input, upload, transmit or otherwise provide to or through the Application any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;

1.4.6. Damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Application;

1.4.7. Remove, delete, alter, or obscure any trademarks, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from Application, including any copy thereof;

1.4.8. Access or use the Application in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other MaiData customer), or that violates any applicable law;

1.4.9. Access or use the Application in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Application could lead to personal injury or severe physical or property damage; or

1.4.10. Otherwise access or use the Application beyond the scope of the authorization granted under this section.

2. Service Support. maiData will provide customer support services as provided in Schedule C. maiData may amend the support services from time-to-time in its sole discretion, by posting a revised Schedule C on io/saas.

3. Fees; Payment Terms.

3.1. Fees. The Customer will pay maiData the fees set forth at io/pricing unless otherwise specified in Schedule B (“Fees”). maiLink software and usage fees are billed monthly at the end of each calendar month.

3.2. Taxes. All Fees and other amounts payable by the Customer under this Agreement are exclusive of taxes and similar assessments. The Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by the Customer under this Agreement, other than any taxes imposed on maiData’s income.

3.3. Payment. maiData will charge the Customer’s credit card on file at the beginning of the next calendar month. In the event that the credit card is declined or the expiration date has passed and no new credit card information is given to maiData, maiData will immediately suspend the Customer’s account, and will advise the Customer of the suspension. If the Customer account is suspended, the Customer will not have access to the Application. If within five (5) days of the suspension the Customer provides a valid credit card number, maiData will lift the suspension. If the Customer does not provide a valid credit card number within ten (10) days of date of suspension, maiData will terminate the Agreement. maiData will retain the Customer data for ninety (90) days.

4. Intellectual Property Rights. All right, title, and interest in and to the Application, including all intellectual property rights therein, are and will remain with maiData. The Customer has no right, license or authorization for the Application except for the right to access and use as provided in this Agreement.

5. Term and Termination.

5.1. Term. The term of this Agreement begins on the Effective Date and will remain in effect unless terminated earlier pursuant to any of the Agreement’s express provisions (the “Term”).

5.2. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

5.2.1. Termination with Notice. maiData may terminate this Agreement if:

5.2.1.1. The Customer’s credit card on file is declined, and the Customer does not give maiData new credit card information within 15 days of maiData’s notice to the Customer.

5.2.1.2. The Customer is in material breach of any part of Sections 1 or 7 of this Agreement, the breach is capable of being cured but it remains uncured for 15 days after maiData provides the breaching party with written notice of the breach.

5.2.2. Immediate Termination. maiData may immediately terminate this Agreement if the Customer misuses the Application or software in any way, as outlined above in Section 1.4.

5.3. Effect of Expiration or Termination. When this Agreement terminates, except as expressly otherwise provided in this Agreement:

5.3.1. All rights, licenses, consents, and authorizations granted to the Customer under this Agreement will immediately terminate;

5.3.2. The Customer will immediately cease all use of Application and (i) promptly return to maiData, or at maiData’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Application and (ii) permanently erase Application from all systems the Customer directly or indirectly controls;

5.3.3. maiData will disable all Customer access to the Application; and

5.3.4. The Customer will pay all outstanding usage fees.

5.3.5. If the outstanding usage fee payment is not made in full to maiData within 30 days of termination, maiData may, at its own discretion, permanently delete all Customer data held, including but not limited to credit card, personal, personnel, connected device, and audit log information.

6. Limitations of Liability.

6.1. Exclusion of damages. In no event will maiData be liable under or in connection with this Agreement for any consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages.

6.2. Cap on monetary liability. In no event will the aggregate liability of maiData under or in connection with this Agreement exceed the amounts paid by the Customer for the application.

7. Confidentiality.

7.1. Definitions. “maiData Confidential Information” means all information disclosed by maiData to Customer that is not publicly available information about maiData, maiData products, future maiData product plans, strategies, technologies, pricing, and the terms of this Agreement. “Customer Confidential Information” means all information disclosed by Customer to maiData that is not publicly available information about the Customer, future Customer product plans, strategies, and technologies.

7.2. Non-Disclosure of Confidential Information. The Customer will hold all maiData Confidential Information in confidence for the sole benefit of maiData and will not directly or indirectly reveal, report, publish, disclose or transfer any maiData Confidential Information to any person or entity other than maiData. maiData will hold all Customer Confidential Information in confidence for the sole benefit of maiData and will not directly or indirectly reveal, report, publish, disclose or transfer any Customer Confidential Information to any person or entity other than Customer.

8. Support and Maintenance Services. maiData will provide the support and maintenance services to the Customer as described on Schedule C.

9. Miscellaneous.

9.1. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and to be wholly performed within California, without giving effect to California’s laws about conflict of laws.

9.2. Successors and Assigns. This Agreement will be binding upon, and will inure to the benefit of, the parties to it and to their respective heirs, legal representatives, successors and assigns.

9.3. No Assignment. The Customer may not assign its rights or obligations under this Agreement without the prior written consent of maiData. maiData may assign this Agreement in connection with a sale or merger of maiData.

9.4. Notices. Any notices given under this Agreement must be in writing and delivered (i) personally or (ii) by reputable overnight courier (with evidence of delivery). All notices sent by reputable overnight courier are deemed given as of the date of delivery. Notices to maiData must be addressed to maiData, 250 Walter Hayes Drive, Palo Alto, California, 94303. Notices to the Customer will be addressed to the address given by the Customer to maiData upon execution of this Agreement. Either party may change its address for notice under this Agreement by giving notice to the others as described in this section.

9.5. Dispute Resolution. In an action or proceeding under this Agreement, the prevailing party will be entitled to reimbursement of attorney fees, costs, and expenses incurred in connection with the action or proceeding.

9.6. Entire Agreement. This Agreement constitutes the entire agreement between the parties about the subject matter of this Agreement, and supersedes all prior representations or agreements, oral or written. Schedules A, B and C are expressly a part of this Agreement. For any purchase order given by a Customer that has terms inconsistent with this Agreement, this Agreement controls.

9.7. Amendment. This Agreement may only be amended by the written consent of both parties to this Agreement.

9.8. Severability. In the event that any provision of this Agreement is held to be invalid or illegal for any reason by a court of competent jurisdiction, the remaining provisions of this Agreement will continue in full force.

SCHEDULE A

Application

The Applications covered in this Agreement, subject to the terms of this Agreement, are:

• Unlimited downloads and uses of maiLink Agent software, including distribution of unmodified copies of maiLink Agent software within the Customer’s product,
• Unlimited downloads and uses of maiLink Client software by the Customer’s employees and authorized agents,
• Unlimited use of the maiLink cloud software features accessed by the Customer’s employees and authorized agents through the maiLink Portal, and
• Use of the maiLink Access, maiLink Telemetry and maiLink Command apps.

Future product features integrated into the maiLink software, if and when available, can be accessed by the Customer under this Agreement according to the Fees described below.

SCHEDULE B

Fees

The SaaS fees assessed for the Application are listed at maidata.io/pricing.

SCHEDULE C

Support and Maintenance Services

maiData shall provide Customer with the following support and maintenance services for the Applications outlined in Schedule A:

• Access to the maiData hub repository and message board for tips and tricks about implementing and optimizing use of maiData Applications;
• Repair of bugs and defects found in maiData Applications, and replacement of those maiData Applications, as prioritized and scheduled by maiData Engineering;
• Announcement of upcoming maiData Applications features and changes; and
• Technical support via phone, as needed.

maiData will strive to resolve customer issues in a timely fashion.

Service Level Agreement

The maiData Service Level Agreement (“SLA”) is available at maidata.io/sla.