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SaaS Agreement for the Sympliant Digital Platform Module

SAAS AGREEMENT FOR THE SYMPLIANT DIGITAL PLATFORM MODULE (“SAAS AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN SYMPLIANT AND CUSTOMER THAT GOVERNS CUSTOMER’S ACQUISITION, ACCESS, AND USE OF THE SYMPLIANT DIGITAL PLATFORM MODULE AND RELATED SERVICES.

THIS AGREEMENT IS ENTERED INTO EFFECTIVE AS OF THE DATE ON WHICH CUSTOMER ACCEPTS THE AGREEMENT AS SET FORTH IN THE SALES QUOTATION THAT REFERENCES THE SAAS AGREEMENT.

BY ACCEPTING THIS SAAS AGREEMENT, EITHER BY CLICKING A BOX PRESENTED BY THE SAAS MODULE INDICATING CUSTOMER’S ACCEPTANCE OR EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY ACCESSING OR USING THE SAAS MODULE CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF THERE IS A REPRESENTATIVE OF CUSTOMER THAT IS ENTERING INTO THIS SAAS AGREEMENT ON BEHALF OF CUSTOMER OR OTHER LEGAL ENTITY CUSTOMER, CUSTOMER AND SUCH REPRESENTATIVE EACH REPRESENTS AND WARRANTS THAT SUCH REPRESENTATIVE HAS THE AUTHORITY TO BIND THE CUSTOMER AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. NO COMPETITOR OF SYMPLIANT SHALL EVER HAVE THE RIGHT TO ACCESS OR USE THE SAAS MODULE IN ANY EVENT. IF CUSTOMER DOES NOT AGREE TO THE SAAS AGREEMENT CUSTOMER MAY NOT USE THE SAAS MODULE OR RELATED SERVICES.

  1. Definitions.

    1. “Authorized Users” means Company and Company’s employees and independent contractors who are authorized by Company to access and use the SaaS Module and Documentation in accordance with the Agreement, for whom subscriptions to SaaS Module have been purchased, and who have been notified of the obligations and restrictions of this Agreement and supplied with Authorized User identifications and passwords.
    2. “Confidential Information” means any information, maintained in confidence by the Disclosing Party, communicated in written or oral form, marked as proprietary, confidential or otherwise so identified, and/or any information that by its form, nature, content or mode of transmission would to a reasonable recipient be deemed confidential or proprietary, including, without limitation, this Agreement, the Order Forms, Sympliant’s pricing, the SaaS Module, Services Materials, Documentation, and any benchmark data and results produced.
    3. “Customer” means the company or other legal entity listed in the Order Form.
    4. “Customer Data” means the electronic data or information, including personal data, of the Customer that its Authorized Users submit to the SaaS Module.
    5. “Documentation” means the online documentation for the SaaS Module as updated from time to time by Sympliant.
    6. “Force Majeure Event” means an event that arises out of causes beyond a Party’s reasonable control, including, without limitation, war, civil commotion, act of God, strike or other stoppage (whether partial or total) of labor, any law, decree, regulation or order of any government or governmental body (including without limitation a court or tribunal) and/or delays or outages caused by an internet service provider.
    7. “Party” means either Sympliant or the Customer individually; “Parties” means Sympliant and the Customer collectively.
    8. “SaaS Module” means the online, hosted version of Sympliant’s Digital Platform Module software or other Sympliant software application described in the Order Form, as such software is modified from time to time by Sympliant, that Sympliant makes available at a designated customer log-in link subject to this Agreement during the relevant Subscription Term.
    9. “SaaS Module Support” means technical support services provided by Sympliant during the relevant Subscription Term for the SaaS Module.
    10. “Services” means the professional services such as configuration, documentation, and installation services provided by Sympliant for a fee as set forth in the relevant Order Form.
    11. “Order Form” means a Sympliant-provided document including a sales quotation or proposal used to place orders under this Agreement, including Sympliant’s addenda to the Order Form, that is executed from time to time between Sympliant and Customer for the purchase of subscriptions for the SaaS Module, Touchpoints, and Sympliant services. An Order form, in conjunction with a Sympliant sales quotation or proposal, can also include Customer’s purchase order that is accepted by Sympliant in connection with this Agreement. In such event, notwithstanding any language to the contrary in a Customer’s purchase order, no terms or conditions stated in such purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such purchase order’s terms or conditions shall be null and void.
    12. “Subscription Term” means the initial or the renewal term for the SaaS Module set forth in the Order Form.
    13. “Touchpoints” means the optional, third-party hardware that Sympliant makes available for purchase by Customer to use with the SaaS Module.

  2. SaaS Module Subscription, Use, and Restrictions

    1. Contingent upon Customer’s continuous and on-going compliance with the terms and conditions of this Agreement, Sympliant grants Customer a non-exclusive, revocable right to access and use the SaaS Module during the Subscription Term for Customer’s internal business purposes of managing its endscopes, endoscope reprocessors, and related accessory products in accordance with the Agreement, Documentation and the applicable Order Form.
    2. Except as expressly allowed in this Agreement, Customer shall not (a) circumvent or interfere with any mechanisms, code or technology that is used by Sympliant to limit Customer’s access and use of the SaaS Module; (b) adapt, modify, reproduce or create derivative works of the SaaS Modules; (c) use the SaaS Module for the benefit of a third party; (d) distribute, lease, rent, sell, sublicense, provide access to, or transfer the SaaS Module to a third party; (e) incorporate the SaaS Module into any product or service that is provided to a third party; (f) disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or APIs; (g) remove or obscure any proprietary or other notices contained in the SaaS Module; (g) publicly disseminate information about the performance of the SaaS Module; (h) use the SaaS Module for competitive analysis or to build a competing product; or (i) assist or encourage any person or entity to do any of the restricted activities in this section. A breach by Customer and/or its Authorized Users of its obligations under this section shall be considered a material breach of the Agreement.
    3. Sympliant may suspend Customer’s access to the SaaS Module to comply with any law, regulation, court order, or other governmental request.
    4. Sympliant may modify the SaaS Module at its sole discretion upon written notice provided to the Customer via a notice within the SaaS Module.
    5. The SaaS Module may include, without limitation, certain third party software. Such third party software is subject to this Agreement, in addition to any other end user license agreement that accompanies such third party software. No representations, warranties or other commitments of any kind are made regarding such third party software.
    6. All rights not expressly granted by Sympliant in this Section 2 are expressly reserved by Sympliant.

  3. Use of the SaaS Module; Sympliant Responsibilities; Customer Responsibilities

    1. USE OF THE SAAS MODULE. THE SAAS MODULE IS TO BE USED TO SUPPLEMENT CUSTOMER’S ESTABLISHED GI-LAB MONITORING, TRACKING AND REPORTING ACTIVITIES AND PRACTICES. THE SAAS MODULE IS NOT FAULT TOLERANT NOR IS IT INTENDED FOR USE IN PROCESSES OR SYSTEMS INTENDED TO SUPPORT OR SUSTAIN LIFE OR IN ANY OTHER APPLICATION, PROCESS OR SYSTEM IN WHICH THE FAILURE OF THE SAAS MODULE COULD CREATE A SITUATION IN WHICH PERSONAL INJURY OR DEATH MAY OCCUR. CUSTOMER ASSUMES RESPONSIBILITY FOR, AND SHALL USE ITS BEST EFFORTS TO PROVIDE FOR, THE SAFE OPERATION OF THE SAAS MODULE BY CUSTOMER’S AUTHORIZED USERS IN COMPLIANCE WITH THE DOCUMENTATION, APPLICABLE LAWS AND REGULATIONS. THE SAAS MODULE AND USE THEREOF DOES NOT GUARANTEE THAT USE OF THE SAAS MODULE WILL RESULT IN THE CUSTOMER ACHIEVING ANY SORT OF COMPLIANCE, CERTIFICATION OR AUDIT RESULT. USE OF THE SAAS MODULE DOES NOT GUARANTEE THE SAFETY OF PATIENTS. THE CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE CUSTOMER AND ITS AUTHORIZED USERS ARE SOLELY RESPONSIBLE FOR (I) THE ACCURACY OF ANY INFORMATION THAT IS UPLOADED BY THEM OR ON THEIR BEHALF, (II) THE OUTCOME OF THE CUSTOMER’S GI LAB PRACTICES AND PROCEDURES, AND (II) THE SAFETY OF THEIR PATIENTS.

    2. Sympliant Responsibilities.

      1. Subject to the terms and conditions of this Agreement, during the relevant Subscription Term Sympliant will use commercially reasonable efforts to make the SaaS Module available for access and use 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Sympliant will give at least 8 hours’ notice and will schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday U.S. Central Time), or (b) any Force Majeure event, provide the SaaS Module in accordance with applicable laws and government regulations; and provide SaaS Support during published support hours.
      2. Sympliant has taken reasonable administrative and technological measures to protect and secure Customer Data uploaded into the SaaS Module but does not guarantee the security of Customer Data. Sympliant will not modify Customer data, disclose Customer Data except as compelled by law or as expressly in writing by the Customer, or access or use Customer Data except to provide the SaaS Module and to address and prevent service or technical problems, or at Customer’s request in connection with SaaS Support issues. If Customer transfers any personal data to Sympliant as a requirement pursuant to the SaaS Solution, then Customer represents that (i) it is duly authorized to provide personal data to Sympliant and it does so lawfully in compliance with relevant legislation, (ii) Sympliant or its subcontractors can process such data for the purposes of performing its obligations under this Agreement and (iii) Sympliant may disclose such data to its subcontractors for this purpose and may transfer such data to countries outside of the country of origin if necessary. Sympliant is not responsible for unauthorized access, alteration, theft or destruction of Customer Data arising from Customer’s own or its Authorized Users’ actions or omissions in contravention of the Documentation. Customer’s ability to recover any lost data resulting from Sympliant’s breach of this section is limited to restoration of Customer Data by Sympliant from the most recent back-up.

    3. Customer Responsibilities

      1. Customer is responsible for all activities that occur in, or are related to, its accounts including the data, information stored or transmitted when accessing the SaaS Module. All applications residing within Customer’s environment or installed on third party service providers’ environments on behalf of Customer that integrate to the SaaS Module shall be managed and supported by Customer. Customer is responsible for its and its Authorized Users’ compliance with this Agreement. Customer is responsible to ensure that it’s, and its Authorized Users’, use the SaaS Module shall always be in accordance with the Agreement, Documentation and applicable laws and government regulations, including without limitation all applicable export and import laws.
      2. Customer shall be solely responsible for acquiring and maintaining all communication services and equipment necessary for access to and use of the SaaS Module by its Authorized Users, including but not limited to network equipment, broadband internet access, computer hardware and software and other equipment and services that are compatible with the SaaS Module. Touchpoints may be purchased by Customer from Sympliant for use with the SaaS Module but are not required so long as Customer and its Authorized Users have a web-enabled computer and web access that comply with Sympliant’s specifications for use with the SaaS Module.
      3. Sympliant reserves the right at any time, with thirty days written notification to Customer via Sympliant’s customer support site, to modify the equipment, performance specifications or other services required to access or use the SaaS Module without liability to Sympliant for any cost to Customer as a result of such modification. Customer is responsible for making the necessary modifications in services and equipment necessary for access and use of the SaaS Module.

    4. Government End Use Provision. Sympliant provides the SaaS Module, included related software, Documentation, and technology, for U.S. government end use solely in accordance with the following: Government technical data and software rights related to the SaaS Module and Documentation include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Sympliant to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

  4. Services. If Customer purchases Services, the Order Form reflecting such purchase of Services shall serve as project authorization by Customer to for Sympliant to perform the Services. Customer shall be responsible for providing Sympliant with access to Customer’s employees who will coordinate and receive the Services, internet access, software and hardware controlled by Customer that is necessary for performance of the Services, and safe access to Customer’s premises to perform the Services. Sympliant will comply with Customers written rules with respect to its premises and networks provided that such rules are provided to Sympliant prior to the commencement of Services. All materials and information used or generated by Sympliant in the performance of Services (“Services Materials”) and all intellectual property rights therein, shall be the sole and exclusive property of Sympliant. Sympliant grants Customer a limited, non-exclusive, non-transferable license, without the right to sublicense and solely for Customer’s own internal business operations, to use the provided Services Materials during the Subscription Term, subject to all of the provisions of this Agreement governing the SaaS Module and Documentation, as applicable. The rights to any of Customer Data, or results of any compilation thereof, which is used in or result from the Services and Services Materials, shall remain Customer’s sole and exclusive property. All Services must be used by Customer within three months after the date of the relevant Order Form and there will be no refunds provided for amounts paid for Services, or any portion thereof, not used within the applicable three month period. All Services are non-cancelable and non-refundable.

  5. Proprietary Rights.

    1. Sympliant and its licensors shall retain all right, title, copyright, patent, trademark, trade secret and all other proprietary interests to the Sympliant software, the SaaS Module, Sympliant products and services, and to all Sympliant intellectual property and any enhancements, modifications or derivatives thereof. Except as expressly granted in this Agreement, no title, copyright, patent, trademark, trade secret or other right of intellectual property for Sympliant’s SaaS Module, Documentation or other intellectual property conferred to Customer or its Authorized Users.
    2. Customer and its licensors shall retain all right, title, copyright, patent, trademark, trade secret and all other proprietary interests to the Customer Data. Customer grants Sympliant a limited, royalty-free license to host, transmit and display Customer Data as reasonably necessary to provide the SaaS Module to Customer and its Authorized Users. Subject to the limited rights granted by Customer hereunder, Sympliant acquires no right, title or interest from Customer under this Agreement in or to Customer Data, including any intellectual property rights therein.
    3. Customer hereby grants Sympliant a royalty-free, irrevocable, perpetual license to use and incorporate into the SaaS Module any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) provided by Customer, including Authorized Users, relating to the operation of the SaaS Module. Sympliant has no obligation to implement any such Feedback. From time to time, Sympliant may contact Customer and its Authorized Users, either via the SaaS Module or by email provided by Customer and its Authorized Users to measure customer satisfaction with the SaaS Module and SaaS Support.

  6. Ordering, Delivery, Fees and Renewals

    1. Fees. Customer shall pay all fees specified in the relevant Order Form within thirty (30) days after receipt of Sympliant’s invoice if approved by Sympliant or such other payment term set forth in the Order Form by Sympliant. The SaaS Module fees are based on subscriptions and the number of endoscopes and endoscope reprocessors licensed to be managed with the SaaS Module and not actual usage. Payment of fees for SaaS Module subscriptions is required annually in advance of each twelve-month period that makes up the relevant Subscription Term unless specifically indicated otherwise by Sympliant on the relevant Order Form. Fees for other services are invoiced in advance of performance of the services. Payment obligations are non-cancellable, all fees paid are non-refundable except as set forth within this Agreement, and the number of Authorized User subscriptions purchased cannot be decreased during the relevant Subscription Term. Authorized User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for additional Authorized Users subscriptions added prior to the 15th day of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Subscription Term, fees for additional Authorized User subscriptions added after the 15th day of a monthly period will be charged at a pro-rata rate for that remaining portion of the monthly period and the monthly periods remaining in the Subscription Term. Subscription fees for any renewal term for the SaaS Module shall be at Sympliant’s then current price charged for the SaaS Module at the time of renewal.
    2. Customer shall pay any applicable VAT, GST, sales tax, and any other applicable taxes in addition to the fees when such payments are due.
    3. A Customer issued purchase order may be used to accept terms of an Order Form in place of a signature on the Order Form itself as long as Customer references the Order Form including the appropriate reference number. Any terms that may appear on a Customer’s purchase order that vary from the Agreement (including without limitation pre-printed terms) shall be deemed null and void.
    4. The SaaS Module is made available by electronic delivery and Touchpoints are delivered FCA (INCOTERM) Sympliant’s shipping facility in Austin, TX. Title and risk of loss transfers to Customer upon provision of the Touchpoints to the Sympliant-selected carrier.
    5. Overdue Charges/Suspension of SaaS Module/Acceleration. If any amounts owing by Customer under this Agreement are thirty (30) or more days overdue Sympliant may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and suspend Customer’s access to, without liability on the part of Sympliant, the SaaS Module and/or Services until such amounts are paid in full.
    6. Disclosure of Discounts. This Agreement may result in a discount or reduction in price for the SaaS Module and/or Services. Customer is obligated to properly disclose and appropriately reflect the net value or reduced prices of the Service on applicable cost reports or in charges to Medicare, Medicaid, and other federal health insurance programs or state health insurance programs in accordance with Section 1128B(b)(3) of the Social Security Act, 42 U.S.C. 1320a 7b(b)(3). Customer should contact Sympliant if pricing and discounting information is required.
    7. Unless stated otherwise by Sympliant in the relevant Order Form, all Authorized User subscriptions shall automatically renew for additions periods equal to the expiring Subscription Term unless a Party gives the other Party notice of non-renewal at least thirty (30) days prior to the end of the relevant Subscription Term.

  7. Technical Support for SaaS Module/Upgrades to the SaaS Module

    1. Technical Support for the SaaS Module (“SaaS Support”) is included in the fees for the SaaS Module. During the Subscription Term Sympliant will provide SaaS Support. SaaS Support will be provided by Sympliant in a professional and timely manner.
    2. To receive the SaaS Support, Customer will designate a technical contact who will be allowed to log SaaS Support issues with Sympliant via its Support webpage.
    3. SaaS Support hours are Monday through Friday, from 7 a.m. U.S. Central to 7 p.m. U.S. Central excluding holidays observed by Sympliant.
    4. SaaS Support includes any updates to the SaaS Module that Sympliant, in its sole discretion, may release from time to time as well as error correction, bug fixes and security updates. If Sympliant determines that the update requires any upgrade to the Touchpoints for such enhancements, Customer shall be solely responsible for the cost of such upgrade.

  8. Limited Warranty/Warranty Disclaimer

    1. Limited Warranty for the SaaS Module.
      1. Sympliant warrants that during the Subscription Term the SaaS Module will perform materially in accordance with its Documentation.
      2. If Sympliant breaches the warranty above in 8.1.1, Sympliant may, at its option, (i) use reasonable efforts to cure the defect in the SaaS Module; (ii) replace the SaaS Module or component thereof with another SaaS product that materially conforms to the specifications in the Documentation; or
        (iii) in the event Sympliant cannot, after commercially practicable attempts to do so, achieve the remedies in (i) or (ii), Sympliant may terminate the Subscription Term for the SaaS Module and provide a refund of pre-paid, unused fees calculated against the remainder of the Subscription Term as of the effective date of such termination. Customer must report the alleged breach of warranty with reasonable specificity in writing within thirty (30) days of its occurrence to benefit from this warranty and the stated remedies. The above warranty remedies are Sympliant’s sole obligation and liability and Customer’s sole and exclusive remedy for breach of the above warranty.
    2. No Warranty for Touchpoints.
      1. No warranty is provided by Sympliant for any Touchpoint.
      2. In the event of failure of a Touchpoint during the Subscription Term, Sympliant will replace the non- working Touchpoint with a replacement unit if Customer has purchased replacement coverage from Sympliant otherwise the Customer will be responsible for the cost of replacing the Touchpoint at the then-current Sympliant list price. If replacement coverage has been purchased by Customer for the affected Touchpoint, such replacement will be undertaken by Sympliant.
    3. Limited Warranty for Services.
      1. Sympliant warrants that it will perform the Services as detailed in the applicable Order Form in a professional workman like manner. Customer shall provide written notice of a Services warranty claim within thirty (30) days of date of performance (“Notice”) of the Services claimed to be in breach of the foregoing warranty. If Notice is not provided to Sympliant that a breach occurred, then the Services will be deemed performed in accordance with the warranty obligations. In the event of a breach by Sympliant of the above Services warranty, Customer’s sole and exclusive remedy, at Sympliant’s discretion and in consultation with Customer, shall be re-performance the non-conforming Services by Sympliant at no additional charge to Customer or a refund the applicable fees paid which correspond to the non-conforming Services.
    4. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH ABOVE IN THIS SECTION 8, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THIRD PARTY WARRANTIES, IMPLIED WARRANTIES OF NON-INFRINGEMENT,

      MERCHANTABILITY, SUITABILITY OR SATISFACTORY QUALITY, OR THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE ARE MADE BY SYMPLIANT. WITHOUT LIMITING THE EXPRESS WARRANTIES IN THIS SECTION 8, SYMPLIANT DOES NOT WARRANT THAT USE OF THE SAAS MODULE, SAAS SUPPORT, OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT YOUR DATA WILL BE PRESERVED OR MAINTAINED WITHOUT LOSS.

    5. Customer’s Warranties. Customer warrants that (i) it has the right to transmit Customer Data and any data or information as may be required for the purposes of accessing and using SaaS Module or receiving SaaS Support, and (ii) it is responsible for all activities that occur in its Authorized User accounts.

  9. Confidential Information

    1. As used in this Agreement, the “Disclosing Party” means the party that discloses, provides access to, transmits or otherwise communicates Confidential Information to the Receiving Party. The “Receiving Party” means the party that accesses or receives the Confidential Information from the Disclosing Party. Confidential Information shall exclude: (i) information which the Receiving Party has been authorized in writing by the Disclosing Party to disclose without restriction; (ii) information which was rightfully in the Receiving Party’s possession or rightfully known to the Receiving Party prior to receipt of such information from the Disclosing Party; (iii) information which was rightfully disclosed to the Receiving Party by a third party having proper possession of such information, without restriction; (iv) information which is part of or enters the public domain without any breach of the obligations of confidentiality by the Receiving Party; and (v) information which is independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information.
    2. The Receiving Party shall treat the Disclosing Party’s Confidential Information confidentially and use the same degree of care that it uses to protect the confidentiality of its own Confidential Information which shall not be less than a reasonable standard of care. The Receiving Party shall (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither Party shall disclose the terms of this Agreement or any Order Form to any third-party other than its affiliates and their legal counsel and accountants without the other party’s prior written consent. The Receiving Party agrees, at any time upon the request of the Disclosing Party or any termination or expiration of this Agreement, to return the Disclosing Party’s Confidential Information or certify the destruction of such Confidential Information.
    3. The Receiving Party shall be permitted to disclose Confidential Information in connection with a judicial or administrative proceeding to the extent that such disclosure is required under applicable law or court order, provided that the Receiving Party shall, where reasonably possible, give the Disclosing Party prompt and timely written notice of any such proceeding and shall offer reasonable cooperation in any effort of the Disclosing Party to obtain a protective order.
    4. In the event of a breach of this Section 9, the Disclosing Party may not have an adequate remedy at law. The Parties therefore agree that the Disclosing Party may be entitled to seek the remedies of temporary and permanent injunction, specific performance or any other form of equitable relief deemed appropriate by a court of competent jurisdiction.
    5. For the SaaS Module, the underlying Sympliant software products, Documentation, and Confidential Information specifically designated by the Disclosing Party in writing as perpetually confidential, the obligations of this Section 10 are perpetual and shall survive termination or expiration of the Agreement. For all other Confidential Information, the foregoing obligations shall continue for three (3) years from the termination or expiration of the Agreement.

  10. Termination

    1. This Agreement shall continue in effect unless otherwise terminated in accordance with this section.
    2. This Agreement and/or the relevant Order Form may be terminated by either Party (a) upon a material breach by the other Party, provided that, in each instance of a claimed breach (i) the non-breaching Party notifies the breaching Party in writing of such breach; and (ii) the breaching Party fails to either cure such breach within thirty (30) days (or such other period as mutually agreed by the Parties) from receipt of such notice; or (b) upon insolvency of the other Party, if permitted by law.
    3. Termination does not release either Party from any liability which, at the time of termination, had already accrued to the other Party or which is attributable to a period prior to such termination, nor preclude either Party from pursuing any rights or remedies it may have under law or in equity with respect to any breach of this Agreement unless this Agreement specifically sets forth a sole and exclusive remedy. Except for termination based on Sympliant’s uncured material breach, all fees are non-cancellable and non-refundable unless a pro-rated refund is specifically designated in this Agreement. In the event of termination by Sympliant for an uncured material breach by Customer, all fees shall immediately become due and payable.
    4. On expiration or termination of the relevant Subscription Term or on termination of this Agreement, access and use by Customer and its Authorized Users of the SaaS Module, and provision of Services, shall terminate on the applicable expiration or termination date.
    5. Prior to the expiration or termination of a Subscription Term or this Agreement, Customer may contact SaaS Support for help arranging the download of Customer Data stored in the SaaS Module that Customer wishes to retain. Customer Data is deleted within five (5) days after expiration or termination of the Subscription Term or this Agreement.
    6. Survival. Sections pertaining to Confidential Information, Proprietary Rights, Limitation of Liability, Termination, and General Terms shall survive termination of this Agreement.

  11. Limitation of Liability. EXCEPT IN THE CASE OF A BREACH OF SYMPLIANT’S PROPRIETARY RIGHTS, INFRINGEMENT OF SYMPLIANT’S INTELLECTUAL PROPERTY RIGHTS, OR BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY (INCLUDING ANY OF SYMPLIANT’S SUPPLIERS) SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES OF ANY NATURE, INCLUDING, BUT NOT NECESSARILY LIMITED TO, LOSS OF PROFIT, DAMAGES RELATING TO MONIES SAVED OR FEES GENERATED, AND/OR ANY LOSS OF DATA BY USE OF THE SAAS MODULE OR ANY SYMPLIANT PRODUCT OR SERVICES, REGARDLESS OF WHETHER SYMPLIANT WAS APPRISED OF THE POTENTIAL FOR SUCH DAMAGES.

    IN NO EVENT WILL SYMPLIANT’S LIABILITY EXCEED THE FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE BREACH THAT GAVE RISE TO THE CLAIM.

  12. Dispute Resolution. Any claim or dispute arising out of the Agreement or its interpretation (a “Dispute”) shall be resolved as provided in this section. Before starting formal dispute resolution procedures, senior executives of the Parties shall first meet promptly to discuss the Dispute and to negotiate in good faith to resolve the Dispute. If the Parties are unable to resolve the Dispute within thirty (30) days after such meeting, then formal dispute resolution proceedings may begin. The provisions of this section will not be construed to prevent a Party from pursuing formal proceedings to the extent necessary to avoid the expiration of any applicable limitations period or to pursue equitable rights or injunctive remedies deemed reasonably necessary to protect its interests.

  13. General Terms

    1. Force Majeure. Except for payment obligations and obligations pertaining to confidentiality, neither Party will be liable for any action taken, or any failure to take any action required to be taken, in the event and to the extent that the taking of such action or such failure arises out of causes beyond a Party’s control, including, without limitation, war, civil commotion, act of God, strike or other stoppage (whether partial or total) of labor, failure of internet services providers, any law, decree, regulation or order of any government or governmental body (including any court or tribunal).
    2. Independent Contractors. The Parties expressly agree that the relationship between them is that of customer-independent contractor.
    3. Export Control. The SaaS Solution is subject to U.S. and foreign export control laws. The Parties shall comply with all applicable import and export laws and regulations. Customer shall not export, re-export or transfer access and use of the SaaS Solution in violation of U.S. law or use the SaaS Solution for any illegal purpose. Customer shall indemnify Sympliant for any violation of applicable law by Customer or its Authorized Users in connection with the SaaS Module.
    4. Assignment. If Sympliant assigns or sells or otherwise transfers its rights to a business or product line or substantially all of its assets and provided such third party agrees in writing to perform the obligations under the Agreement, then Sympliant may transfer its rights and obligations under the Agreement upon written notice to Customer. Except as permitted herein, neither Party may transfer, whether by operation of law or otherwise, the Agreement without prior written consent of the other Party, and consent shall not be unreasonably withheld. Attempts to transfer in contravention of this sub-section shall be deemed null and void. The Agreement shall be binding on the Parties hereto and their respective successors and assigns.
    5. Notice. All notices hereunder shall be delivered to the other Party identified in the Agreement either personally, via certified mail, email or overnight courier. If delivered personally, notice shall be deemed effective when delivered; if delivered via email, notice shall be deemed effective upon electronic confirmation of such delivery by email system notice; and if delivered via certified mail or overnight courier, notice shall be deemed effective upon delivery by the courier.
    6. Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the Parties.
    7. No third-party beneficiaries. There are no third-party beneficiaries to this Agreement.
    8. Amendment. The terms of this Agreement may only be amended by mutual written agreement of the Parties.
    9. Entire Agreement. This Agreement and the relevant Order Forms incorporated by reference therein shall comprise the entire agreement as pertaining to the subject matter thereof and all other prior representations, proposals, and other such information exchanged by the Parties concerning the subject matter is superseded in their entirety by the Agreement. Any pre-printed, additional or contrary terms on Customer’s purchase order or purchase authorization are void and are not binding on Sympliant.
    10. Validity. In the event any term or provision of the Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of the Agreement.
    11. No third-party beneficiaries. This Agreement shall not create any rights in favor of, or any obligations owed by, any third party except as expressly stated in this Agreement. The Parties agree that any action arising from this Agreement shall solely be brought by Customer or Sympliant.
    12. Governing Law/Venue. The laws of the State of Texas, excluding its conflict of laws provisions, shall govern the construction and enforceability of the Agreement. The Parties agree that any action arising under or relating to the Agreement shall lie within the exclusive jurisdiction of the state and federal courts located in Travis County, Texas. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.
    13. The Parties may execute this Agreement in counterparts, each of which is an original and all of which together will constitute one instrument. A facsimile or electronic transmission of an original will constitute delivery of an original.