Software as a Service Agreement

THIS SOFTWARE AS A SERVICE AGREEMENT governs the use of the Lattus platform pursuant to a Service Order entered by you as a user (“ Customer “) and Lattus, Inc. (“ Provider “), as referenced in the Terms attached to the Service Order, to which this Software as a Service Agreement are incorporated by reference.

STATEMENT OF AGREEMENT

In consideration of the mutual covenants, agreements, and obligations set forth in this Agreement, the parties agree as follows:

  1. Definitions

  2.  Application ” means Provider’s proprietary social media and online application allowing users to create a profile, connect in the application, and leave reviews for other users as more fully identified on an applicable Service Order.

  3.  Commencement Date ” is the date that Service availability will begin and start of the Term, as defined herein. The Commencement Date, if different then the Effective Date, shall be set forth on the Service Order.

  4.  Customer Data ” refers to data in electronic form (i) input by or collected from Customer through or in connection with the Service, or (ii) generated by Provider or the Service from data submitted or on behalf of Customer.

  5.  Intellectual Property Rights ” means any and all registered or unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.

  6.  Materials ” means the Application, all specifications, documentation, and any and all other information, data, materials, works, services, content, images, devices, methods, processes, hardware, software, technologies, inventions, source code, and any other aspect of the Service, including any deliverables, technical or functional descriptions, requirements, plans or reports that are provided by or used by Provider in connection with the Service or otherwise comprise or relate to the Service or the Application. The foregoing notwithstanding, Materials shall not include Customer Data.

  7.  Permitted Users ” means any Customer’s end user (for example, as applicable, an employee, agent, student, licensee, or other invitee of Customer) that is granted user access credentials to access the Service.

  8. Service(s)” means, collectively, Provider’s hosted Application and any Additional Services, which are further described in the applicable Service Order.

  9.  Service Order” means the detailed statements of Services to be provided hereunder and the related fees, and other details as agreed upon by the Parties, in substantially the form attached hereto as Exhibit A. Further engagements between Provider and Customer by this Agreement and have service, payment details other deal-specific terms set forth on an additional Service Order. Each Service Order, when executed by each Party hereto, shall be incorporated herein. If any conflict exists between any term of this Agreement and any term contained in a Service Order, the terms in this Agreement shall govern, unless the Service Order specifically references such conflict and indicates the Parties’ intent that the conflicting term in the Service Order shall govern, in which case the Service Order shall govern as to such referenced conflict only.

  10.  Term ” means the Initial Term (defined below), as extended by any Additional Terms (defined below) in accordance with the terms of this Agreement.

  11. Service Subscription.

  12. Grant. Provider hereby grants to Customer and its Permitted Users a nonexclusive subscription right to use the Services during the Term to allow the Permitted Users to connect with other users for Customer’s own business, academic, or other purposes. Nothing in this Agreement shall in any way limit the ability of Provider to offer access to and use of the Services to any other party.

  13. Limitations on Subscription_._Customer shall not be granted any rights to the Service beyond that which is specifically provided for herein. Customer acknowledges that at no time shall it be entitled to download, distribute, install, transfer, or otherwise redistribute the Application in any form not explicitly covered by this Agreement. At no time will Customer hold title to or ownership of the Service, any component of the Application, or source code or any Materials provided to Customer during the term of this Agreement.

  14. Additional Services. From time to time, Customer may request that Provider perform various additional services, including consulting services (the “ Additional Services “) for Customer. If the Additional Services requested are a type of services that Provider then offers to its other customers, Provider agrees to make such services available to Customer at the hourly rate then charged by Provider for such Additional Services. Customer and Provider shall enter into a written statement of work, work order or other written agreement regarding such Additional Services prior to commencement thereof and such written statement of work, work order or other written agreement shall incorporate the terms of this Agreement by reference.

  15. Materials, Software, & Intellectual Property.

  16. Intellectual Property in General. Provider retains all right, title, and interest in and to the Service, including all copies thereof in any form or medium, whether now known or existing or hereafter developed, and further including, and further including, without limitation, all software used to provide the Service and copyrights, patents, trade secrets, trademarks or trade names therein or created thereby, and this Agreement does not grant Customer any Intellectual Property Rights in or to the Service or any of its components.

  17. Materials. Without limiting the foregoing, Customer recognizes and agrees that: (i) the Materials are the property of Provider or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) Customer does not acquire any Intellectual Property Rights, or any other right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Customer’s and its Permitted Users’ use of the Service.

  18. Additional Services Performed by Provider. Provider shall own any intellectual property created through the performance of Additional Services by Provider under this Agreement. For any such intellectual property created by these Additional Services Provider grants Customer a nonexclusive license during the Term to use such intellectual property for the limited purposes of contemplated by this Agreement. Any such license shall be terminated at the time of the termination of this Agreement.

  19. Provider Obligations

  20. Hosting. Provider shall, at its own expense, maintain the Application on one or more computer network servers (any such servers, collectively, the “ Application Server “). Provider shall bear sole responsibility for the operation and maintenance of the Application Server hardware, its operating system and/or its platform software, and any third-party application software associated with, or necessary for, the operation and functioning of the Application Server in accordance with this Agreement. Provider shall be permitted to enter into an arrangement with one or more third parties (each, a “ Third Party Host “) for the performance of Provider’s obligations under this Section 4, whereby any such Third Party Host may install the Application, own, operate or maintain the Application Server, or undertake to manage the Application Server.

  21. Service Levels.

    1. Provider will undertake commercially reasonable measures to ensure that the operation and function of the Application and the Application Server are available at the service levels as set forth in the Service Level Agreement contained on Exhibit A (the “ Service Levels “), however, Provider will have no obligation under this Section 4(b) to the extent any lack of availability that arises, in whole or in part, from (A) any use of the Application by Customer that is outside of or in violation of the terms and conditions set forth herein, or (B) any failure by Customer to comply with this Agreement.
    2. If any Application outage reported by Customer causes Provider to fail to meet the Service Levels, Customer shall be entitled to a credit against future payments in the amount specified on Exhibit B (each a “ Service Level Credit “).
  22. Security and Disaster Recovery .

  23. Security. At all times during the Term, Provider shall be responsible for the security of the Services, Materials and Customer Data. Provider shall make reasonable commercial efforts to provide physical and information security standards in connection with the Service that meets generally accepted industry standards for physical and information security.

  24. Term and Renewal .The initial term of this Agreement shall begin as of the Commencement Date and, unless sooner terminated pursuant to the provisions of Section 8, shall be in effect as set forth in the Service Order (the “Initial Term“). Following the Initial Term, this Agreement will automatically renew for additional terms as set forth in the Service Order (each, an “Additional Term“) unless either Party gives written notice to the other of its intention not to renew at least thirty (30) days prior to the end of the then-current term.

  25. Payment Provisions.

  26. Payment Amounts. As consideration for Provider’s performance under this Agreement, Customer shall pay to Provider the amounts set forth on the applicable Service Order.

  27. Periodic Payments. The payment covering the Initial Term of the Services (the “ Initial Payment “) shall be paid as set forth on the applicable Service Order.

  28. Additional Work Payments. Amounts owed for Additional Services shall be paid as set forth on the applicable Service Order.

  29. No Refunds. All payments made hereunder are non-refundable and will not be returned to Customer in any event.

  30. Late Payments. Any payment owed by Customer not paid within the timeframe set forth above will accrue interest at an annual rate set forth in the applicable Service Order. Provider shall have the right to suspend access to the Service if Customer has not cleared a delinquent payment within five (5) days after notice from Provider that such payment has not been received.

  31. Taxes. All amounts payable hereunder shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Customer will be responsible for payment of all such taxes, fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights in the Application to Customer, or the delivery of related services.

  32. Termination.

  33. Mutual Termination Rights. This Agreement shall terminate (i) at the end of the current Term, (ii) after proper notice given by a terminating Party pursuant to this Section 8, or (iii) at any time upon mutual agreement in writing by Provider and Customer.

  34. Termination by Provider. Provider may terminate this Agreement by sending written notice to Customer upon the occurrence of any of the following events:

    1. Following notification by Provider of a late payment due under Section 7, Customer fails to make a payment within 15 days thereafter;
    2. After 15 days’ written notice, Customer or any user Permitted User continues to violate Provider’s Acceptable Use Policy, or another party other than a Permitted User accesses the Service through the user credentials issued to Customer;
    3. Customer fails to comply with any term of this Agreement within 15 days following notification by Provider of such failure to comply; or
    4. Appointment of a receiver or the filing of any application by Customer seeking relief from creditors.
  35. Effects of Termination. Upon the termination of this Agreement for any reason, Customer shall immediately cease using the Service and shall return or destroy all Materials. No refunds for fees paid hereunder shall be made for any reason. Customer Data following termination shall be treated as set forth in Section 13(a).

  36. Survival. The following provisions will survive termination of this Agreement: (i) any obligation of Customer to pay any fees incurred hereunder prior to termination; (ii) Sections 3, 7, 8(d), 9, 10, 11, 13 and 16 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.

  37. Customer Duties.

  38. Restriction of Access. Customer shall restrict access to the Service to Customer’s Permitted Users and ensure compliance by all Permitted Users with the Acceptable Use Policy. Customer shall promptly report to Provider any known violation of the Acceptable Use Policy by its Permitted Users or any access to the Service by anyone other than a Permitted User.

  39. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (i) all Customer Data, including its content and use; (ii) all information, instructions and materials provided by or on behalf of Customer or a Permitted User in connection with the Service; (iii) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (the “ Customer Systems “); (iv) the security and use of Customer’s and its Permitted Users’ access credentials; and (v) all access to and use of the Service and Materials directly or indirectly by or through the Customer Systems or its or its Permitted Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from and all conclusions, decisions and actions based on such access or use.

  40. Acceptable Use Policy**The obligations set forth in this Section constitute the “_ Acceptable Use Policy**_” with respect to use of the Application by Customer and any Permitted Users.

  41. Acceptable Use. Customer is solely responsible for the content of any postings, data, or transmissions using the Services, or any other use of the Services by Customer or by any person or entity that accesses the Services using Customer’s or its Permitted Users’ access credentials, whether or not such person or entity is a Permitted User. Customer shall not, and shall not permit any other party to, or attempt to:

    1. permit any individual under the age of 18 to be a permitted user without first obtaining the written consent of such individuals parent or guardian;
    2. modify, disassemble, create derivative works, publicly display, reverse engineer and/or otherwise reduce to human-perceivable form all or any part of the Services;
    3. submit or transmit any emails, user content or other materials through the Services that contain a virus, worm, Trojan horse or any other harmful component designed to interrupt, destroy or limit the functionality of any computer software, hardware, or telecommunications equipment, or that is designed to obtain unauthorized access to any information;
    4. pretend to be someone else, use someone else’s identify or misrepresent an affiliation with any person or entity;
    5. copy or imitate part or all of the design, layout, and/or look-and-feel of the Services and/or individual sections of it, in any form or media;
    6. submit, post, or transmit content, data or information that is indecent, hateful, malicious, racist, defamatory, fraudulent, libelous, treasonous, violent or promoting the use of violence or otherwise harmful to others;
    7. promote information about illegal activities, physical harm or injury to any group, individual, institution, or property;
    8. submit or transmit any content that violates, plagiarizes, or infringes the rights of third parties including, without limitation, copyright rights, trademarks, rights of privacy or publicity, or any other proprietary right; or that is designed to obtain unauthorized access to any information;
    9. use the Services for any unlawful purpose or to violate any federal, state, international law, code of conduct or other guidelines which may be applicable to the Services; or
    10. act as a service bureau of the Services or otherwise run the Application or access the Services or Materials for any unlicensed third party.
  42. Compliance. In the event of a breach of the Acceptable Use Policy by Customer or any of Customer’s Permitted Users, Provider may suspend or terminate Customer’s access to the Service, in addition to such other remedies as Provider may have at law or pursuant to this Agreement. Neither this Agreement nor the Acceptable Use Policy require that Provider take any action against Customer or any other customer for violating the Acceptable Use Policy, but Provider is free to take any such action it sees fit.

  43. Reciprocal Disclosure of Confidential Information. The Parties anticipate that each may disclose confidential information to the other. Accordingly, the Parties desire to establish in this Section terms governing the use and protection of certain information one Party (“Disclosing Party“) may disclose to the other Party (“Recipient“).

  44. For purposes hereof, “ Confidential Information ” means the terms and conditions hereof, and other information of the Disclosing Party (i) which relates to the Services, including the Materials or Customer Data, as applicable, business models and plans, and technical information and data of Disclosing Party or its customers or suppliers, (ii) which, although not related to the Services, is nevertheless disclosed hereunder, and which, in any case, is disclosed by an Disclosing Party or an affiliate to Recipient in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Recipient within fifteen (15) days of the initial disclosure, (iii) any other information which a reasonable person would deem confidential under the context of disclosure or due to the nature of the information disclosed, or (iv) any information discerned from, based on, relating to, or containing any of the foregoing which may be prepared by Recipient (“ Notes “).

  45. Recipient may use Confidential Information of Disclosing Party only for the purposes of fulfilling its obligations and exercising its rights under this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Agreement and only to its employees, consultants or representatives (collectively, “ Representatives “) who have a need to know for such purposes and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure. Recipient shall ensure compliance with this Agreement by all of its Representatives, and will be responsible for any breach of this Agreement caused by its Representatives.

  46. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Disclosing Party; or (iv) is independently developed by Recipient without use of or reference to Confidential Information.

  47. Recipient further agrees that it shall:

    1. immediately notify Disclosing Party of any breach of this Agreement or any other disclosure of Confidential Information not authorized under this Agreement (collectively, an ” Unauthorized Disclosure“); and
    2. without limiting any remedies available to Disclosing Party, fully cooperate with the Disclosing Party to regain possession of the Confidential Information, prevent its further unauthorized use or disclosure, and limit and mitigate the damage of such Unauthorized Disclosure.
  48. If Recipient or any of its Representatives is required by a valid legal order to disclose any Confidential Information, Recipient shall notify Disclosing Party of such requirements so that Disclosing Party may seek, at Disclosing Party’s expense, a protective order or other remedy, and Recipient shall reasonably assist Disclosing Party therewith. If Recipient remains, in the opinion of counsel reasonably acceptable to Disclosing Party, legally compelled to make such disclosure, it shall: (a) only disclose that portion of the Confidential Information that it is required to disclose; and (b) use reasonable efforts to ensure that such Confidential Information is afforded confidential treatment.

  49. Following the termination of this Agreement, Recipient shall (a) at Disclosing Party’s discretion, promptly return to Disclosing Party or destroy all Confidential Information in its and its Representatives’ possession other than Notes, (b) destroy all Notes, and (c) within 10 days after Disclosing Party’s request, provide Disclosing Party with a certificate confirming Recipient’s compliance with this Section 11. Notwithstanding the foregoing, Recipient may retain copies of Confidential Information that are stored on Recipient’s IT backup and disaster recovery systems until deleted in the ordinary course. Recipient shall continue to be bound by the terms and conditions of this Agreement with respect to such retained Confidential Information.

  50. Provider utilizes a third-party server host to provide the Services, whose security policies are available upon request by Customer. Provider’s use of such host meets Provider’s obligations set forth in this Section 11.

  51. Representations and Warranties.

  52. Representations and Warranties Generally. Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; (iii) that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; and (iv) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.

  53. Representations and Warranties of Customer.Customer further represents and warrants (i) that it has the right to disclose and provide to Provider any data provided through use and access of the Application; and (ii) that Customer’s use of and access to the Application complies with applicable laws and regulations.

  54. Disclaimer. Except for the express warranties specified herein, the Service is provided “as is” and “as available”, and Provider makes no warranties, either express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, non-infringement, or data accuracy. Provider does not warrant that the operation of the Application will be uninterrupted or error-free, or that all errors will be corrected.

  55. Essential Basis of the Agreement. Each Party acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 12 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.

  56. Indemnification.

  57. Indemnification by Customer. Customer will indemnify, defend, and hold harmless Provider, its licensors, service providers, and their respective affiliates, managers, agents and employees, from and against all losses, costs, and expenses, including reasonable attorneys’ fees, arising from use of the Service in violation of the Acceptable Use Policy either by a Permitted User or by any third-party end-user under the credentials provided to a Permitted User.

  58. Notice and Defense of Claims. With respect to a claim entitled to indemnification under Section 13(a) above, a Party seeking indemnification under this Section 13 (the “ Indemnified Party “) will promptly notify the other Party (the “ Indemnifying Party “) of any claim for which it believes it is entitled to indemnification. The Indemnifying Party shall assume control of the defense and settlement of such claim provided that (i) Indemnified Party promptly notifies Indemnifying Party of any such claim in writing (but a failure to do so shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party or the defense is prejudiced by such failure), (ii) the Indemnifying Party is given sole control over the defense and settlement of such claim at its sole cost and expense, provided, however, that the Indemnifying Party will not settle any third-party claim against the Indemnified Party unless such settlement completely and forever releases the Indemnified Party from all liability with respect to such claim without payment or admission of fault by the Indemnified Party, unless the Indemnified Party consents to such settlement, and that (iii) the Indemnified Party will have the right, at its option and expense, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice. For the avoidance of doubt, should the Indemnifying Party refuse the opportunity to have sole control of the defense of the Claims, and should the Indemnified Party be obliged to conduct the same, then any reasonable related attorneys’ fees and costs shall be covered by this Section 13.

  59. Limitations and Exclusions of Liability.Other than instances of gross negligence, or willfully malicious conduct, neither Party will be liable to the other for any incidental, indirect, special, consequential (except for consequential damages arising from a Party’s indemnification obligations hereunder) or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation, or liabilities to third parties arising from any source, even if a Party has been advised of the possibility of such damages. This limitation upon damages and claims is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective. The cumulative liability of Provider to Customer for all claims arising from or relating to this Agreement, including, without limitation, any cause of action sounding in contract, tort, or strict liability, will not exceed the total amount of all license fees paid to Provider by Customer during the Term of this Agreement. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.

  60. Data Management.

  61. Access, Use, & Legal Compulsion. Unless it receives Customer’s prior written consent, Provider: (i) will not access or use Customer Data other than as necessary to facilitate the Service; and (ii) will not give any third party access to Customer Data. Notwithstanding the foregoing, Provider may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Provider will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

  62. Customer’s Rights. Customer possesses and retains all right, title, and interest in and to Customer Data. Notwithstanding the foregoing, Provider reserves the right to retain and utilize non-personal data such as aggregate, summary, de-identified or other usage data, and may include, statistics regarding total users, information regarding types of Internet browsers used by users, and widget usage patterns.

  63. Retention, Deletion, & Request for Data. Provider is responsible to make internal backups of all data used by or hosted on the Application Servers. Upon termination of this Agreement, Provider will retain all Customer Data in its databases for thirty (30) days following the termination date and shall be delivered upon written request by Customer within that thirty (30) day time frame. After thirty (30) days, such data may be undeliverable. Notwithstanding the foregoing, in no event will Provider be liable to Customer for the loss of or deletion of any Customer Data.

  64. Notices. All notices by either Party shall be in writing, and shall be sent to the other Party’s Authorized Representative at the following addresses by United States Certified Mail, postage prepaid, return receipt requested or by Federal Express or other similar nationally recognized courier, or by email, and such notices will be deemed effective upon actual receipt or rejection.

  65. Miscellaneous.

  66. Amendment. This Agreement may not be amended except through a written agreement executed by representatives of each Party. Notwithstanding the foregoing, Provider may amend the Acceptable Use Policy at any time by posting a new version at its website and sending Customer notice thereof.

  67. Independent Contractors. The Parties are independent contractors and will so represent themselves in all regards. Neither Party is the agent nor partner of the other and neither may bind the other in any way.

  68. No Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.

  69. Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.

  70. Assignment & Successors. Provider may assign this Agreement or any of its rights or obligations hereunder without express written consent from Customer. Customer may not assign this agreement without the prior consent of Provider, which consent may be withheld by Provider in its sole discretion. Any attempted assignment in violation of this Section 16(e) shall be null and void. This Agreement will be binding upon and inure to the benefit of the respective successors and permitted assigns of the Parties.

  71. Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the state of Virginia without reference to such conflicts of law. The Parties consent to the personal and exclusive jurisdiction of the state and federal courts located in Fairfax County Virginia.

  72. Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

  73. Reference and use of Customer logo. Customer agrees to provide Provider use of its logo and Customer description for marketing material as permitted by law. Additional Customer feedback and input on case studies or marketing material will be provided as reasonably requested by Provider.

  74. Entire Agreement. This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither Party has relied upon any such prior or contemporaneous communications.

[End of Terms]