Yotascale SaaS Agreement

1.1. Purpose. This Agreement sets forth the terms and conditions under which Yotascale agrees to provide to Customer the SaaS services and related implementation, support, and maintenance services, as set forth on the Order Form and Exhibit A (collectively, the “Services”). Customer’s access to and use of the Services is governed by this Agreement and the applicable order form(s) entered into between Yotascale and Customer that are incorporated into this Agreement (each, an “Order Form”). In the event of any conflict between this Agreement, any Order Form, or any exhibit, the following order of precedence applies: (a) the Order Form, (b) the exhibit, and (c) this Agreement. This Agreement is effective (the “Effective Date”) upon the earlier of (1) Customer’s use or access of any Services, or (2) the effective date of the Order Form.  

1.2. Changes. Yotascale may change this Agreement at any time by posting an updated Agreement to https://yotascale.com/, with such updated Agreement being effective upon Customer’s start of a renewal term. Customer’s continued use of the Service after the effective date of the changes will indicate acceptance of such changes.

1.3. Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with this Agreement, Yotascale hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Services and corresponding documentation during the term set forth in the Order Form, solely for its internal use by Authorized Users. “Authorized User” means Customer’s employees, contractors, and agents authorized by Customer to access and use the Service.

1.4. Customer Affiliates. Customer’s Affiliates may separately purchase and use subscriptions to the Services subject to the terms of this Agreement by entering into an Order Form directly with Yotascale hereunder. This Agreement shall apply to such Affiliates and such Affiliates shall be deemed the “Customer” as contemplated herein. For purposes of this Agreement, an “Affiliate” shall mean a person or entity which controls, is controlled by, or under common control with, a Party to this Agreement.

2.1. Authorized Users. Customer will be liable for the acts and omissions of all Authorized Users in connection with this Agreement, as well as any and all access to and use of the Service by any other person logging in under an Authorized User ID registered under Customer’s account or providing and/or receiving Customer Data or other information through the Service. Customer will: (i) notify Yotascale promptly of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) report to Yotascale promptly and use reasonable efforts to stop immediately any copying or distribution of any of the Services that is known or suspected by Customer or the Authorized Users. “Customer Data” means any data, materials, or content provided or submitted by Customer or the Authorized Users directly or indirectly to or through the Service.

2.2. Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like. Customer shall also be responsible for maintaining the security of such 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 or without Customer’s knowledge or consent.

2.3. Responsibilities. Customer will use and access the Services only in compliance with all applicable laws and regulations. Customer will not and will ensure that its Authorized Users will not: (i) sublicense, sell, transfer, assign, distribute or otherwise commercially exploit the Services; (ii) modify, translate or create derivative works based on the Services; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms or technology relevant to the Services or documentation or any software or data related to the Services; (iv) access the Services in order to build a product using features, functions or graphics similar to any of the Service; (v) copy any features, functions or graphics of the Services; (vi) allow Authorized User subscriptions to be shared or used by more than one individual Authorized User; (vii) remove any proprietary notices or labels; (viii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (ix) attempt to gain unauthorized access to the Service or its related systems or networks.

3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed, or may disclose, business, technical, financial or other confidential or non-public information (“Confidential Information”). Confidential Information of Yotascale includes non-public information regarding features, functionality, and performance of the Service.  Confidential Information of Customer includes non-public Customer Data. The Receiving Party will take reasonable precautions to protect such Confidential Information. The Receiving Party will use the Confidential Information solely to exercise its rights or perform its obligations under this Agreement. The Receiving Party will disclose the Confidential Information solely to its employees and representations on a need-to-know basis to exercise its rights or perform its obligations under this Agreement. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party. The Disclosing Party may disclose Confidential Information to the extent required by applicable law.

4.1. Ownership. Customer shall own all right, title, and interest in and to the Customer Data and all intellectual property rights related to the foregoing. Yotascale shall own and retain all right, title, and interest in and to the Services, Usage Data, any software, applications, inventions, or other technology developed by Yotascale in connection with providing the Services, all improvements, enhancements, or modifications relating to the foregoing, and all intellectual property rights related to any of the foregoing.

4.2. Data. Notwithstanding anything to the contrary herein, Yotascale shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (“Usage Data”), and Yotascale will be free (during and after the term hereof) to use such Usage Data for its business purposes, including to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Yotascale offerings. Usage Data will not identify Customer, any Authorized User, any user of Customer’s website, the Customer Data or any other Confidential Information of Customer.

4.3. License. Customer hereby grants Yotascale and its licensors and suppliers a worldwide, royalty-free, fully-paid up, non-exclusive, transferable, sublicensable license to use the Customer Data during the applicable term in the Order Form solely for the purpose of providing the Services to Customer.

4.4. Feedback. Customer hereby grants Yotascale a worldwide, perpetual, irrevocable, royalty-free, fully-paid up, non-exclusive, transferable, sublicensable license to use and incorporate into the Services any suggestion, enhancement, request, recommendation, correction or other feedback provided by Customer relating to the operation of the Services.

5.1. Fees; Payment. Customer will pay Yotascale the fees (“Fees”) described in the Order Form for the Services in accordance with the terms therein and herein. At the start of the term of this Agreement, Customer will be placed in the applicable pricing tier for one year as determined by Customer’s AWS compute and database usage. At the end of each year, Yotascale will review Customer’s AWS compute and database usage and place Customer in the applicable pricing tier for such year as determined by Customer’s usage. Yotascale reserves the right to change the fees and to institute new fees at the end of the applicable annual term, upon thirty (30) days prior written notice to Customer (which may be sent by email).

5.2. Invoicing. Yotascale will invoice Customer upon execution and annually thereafter. Customer will pay all invoices within 30 days after receipt.

5.3. Corrections. If Customer believes that Yotascale has billed Customer incorrectly, Customer must contact Yotascale no later than 15 days after receipt of the invoice for which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Yotascale’s Customer Support department.

5.4. Taxes. Each Party shall be solely responsible for the payment of all applicable federal and state taxes, including any sales, use, excise or transfer taxes, imposed on it under applicable law, associated with payments under this Agreement.

5.5. Effect of Nonpayment. Yotascale may suspend or terminate the Services and/or this Agreement for late payment.  Unpaid amounts are subject to interest at the lesser of 1.5% per month or the maximum permitted by law plus all collection costs.  Customer will continue to be charged for Services during any suspension.

6.1. Term. The initial term starts and ends on the dates set forth in the Order Form. This Agreement remains in effect as long as an Order Form is in effect. The term of each Order Form auto-renews for additional 12 month periods at the end of the initial term and each renewal term thereafter. Either Party may cancel this auto-renewal by informing the other Party via email at least 30 days prior to the expiration of the then current term.

6.2. Termination. Either party may also terminate this Agreement if the other party materially breaches its representations, warranties or obligations in this Agreement and fails to cure within 30 days after receipt of written notice; provided, that the cure period for late payment is 5 business days.

6.3. Effect of Termination. Upon any termination, (i) Yotascale will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, and thereafter, Yotascale shall delete stored Customer Data, (ii) Customer’s access to and use of the Services will immediately terminate, (iii) all outstanding fees are immediately due and payable, and (iv) each party will return or delete the other party’s Confidential Information.

6.4. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, confidentiality obligations, proprietary rights, fees, warranty disclaimers, indemnification obligations, and limitations of liability.

7.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing as an entity under the laws of the jurisdiction of its organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; and (c)  the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary organizational action of such Party.  

7.2. Additional Yotascale Representations and Warranties. Yotascale represents and warrants to Customer that: (a) it will provide the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement, (b) it will only collect and use Customer Data that is necessary to provide the Services, and (c) it will not knowingly and intentionally deliver any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the Customer’s or its Authorized Users’ networks or systems.

7.3. Additional Customer Representations and Warranties. Customer represents and warrants to Yotascale that: (a) it owns or otherwise has the right to use and share the Customer Data, (b) it has provided all necessary disclosures to individuals and has obtained all necessary consents from individuals and lawful rights, in each case as necessary and as required by applicable law to share Customer Data with Yotascale and for Yotascale and its service providers to use the Customer Data to provide the Services to Customer, and (c) Customer will not include any Sensitive Information in the Customer Data or otherwise make any Sensitive Information available to Yotascale or via the Services. “Sensitive Information” means social security numbers or other government identifiers, information related to racial or ethnic origin, political opinions, religion or other beliefs, medical or health conditions, criminal background, trade union membership, sexual orientation, or any other sensitive data or special categories of data as defined under applicable data protection law.

7.4. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED AS-IS. YOTASCALE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. YOTASCALE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR THE RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL BETA RELEASES ARE PROVIDED AS-IS. YOTASCALE IS NOT LIABLE FOR ANY DELAY OR FAILURE OF PERFORMANCE CAUSED IN WHOLE OR IN PART BY CUSTOMER’S DELAY IN PERFORMING, OR FAILURE TO PERFORM, ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT.

8.1. Each Party will comply with all data protection and security laws applicable to it in connection with this Agreement. Customer will at all times display a privacy policy or other notice on its websites and applications as required by applicable laws. Yotascale will not (a) sell Customer’s personal information, (b) share Customer’s personal information to a third party for cross-context behavioral advertising, (c) retain, use, or disclose Customer’s personal information for any purpose other than for the business purposes specified in this Agreement, including retaining, using, or disclosing the personal information for a commercial purpose other than the business purposes specified in this Agreement or as otherwise permitted by law, (d) retain, use or disclose Customer’s personal information outside of the direct business relationship between Customer and Yotascale, and (e) combine Customer’s personal information with personal information that it receives from, or on behalf of, another person or persons, or collects from its own interaction with the consumer, provided that Yotascale may combine personal information as permitted by applicable law.

8.2. Each Party will implement and maintain reasonable administrative, physical and technical security procedures and practices appropriate to protect the personal information that is under its control or in its possession. Each Party will notify the other as soon as reasonably practicable after becoming aware of a personal information security breach with respect to the Services. Each Party will promptly investigate such security breach if it occurred on its systems or in another area it is responsible.

9.1. No Consequential Damages. To the fullest extent permitted by applicable law, except for liability arising out of breaches of Section 3 (Confidentiality) and Section 4 (Proprietary Rights), neither Party will be liable to the other Party for consequential, indirect, incidental, special, punitive, or exemplary damages arising out of or related to this Agreement, including but not limited to lost profits, loss of use, loss of data, or loss of business, whether caused by breach of contract, tort or otherwise, even if the party is apprised of the likelihood of such damages occurring.

9.2. Cap on Liability. To the fullest extent permitted by applicable law, each Party’s maximum aggregate liability to the other Party under this Agreement will not exceed the amounts paid and payable by Customer to Yotascale in the first 12 months of this Agreement; provided, that each Party’s maximum aggregate liability with respect to personal data protection, personal data security, and personal data breaches, will not exceed $1,000,000. Yotascale’s maximum aggregate liability with respect to beta releases is $100.00.

10.1. Yotascale Indemnification. Yotascale will defend, indemnify and hold Customer harmless from and against any losses, damages, and costs (including reasonable attorneys’ fees) (“Losses”) incurred in connection with any demands, claims, actions, or proceedings brought by a third party (“Claims”) against Customer to the extent alleging that Customer’s use of the Services (excluding Customer Data) in accordance with this Agreement infringes or misappropriates the intellectual property rights of such third party.

10.2. Customer Indemnification. Customer will defend, indemnify and hold Yotascale harmless from and against any Losses incurred in connection with any Claims against Yotascale to the extent arising out of (i) Customer Data or Yotascale’s use of the Customer Data in accordance with this Agreement, or (ii) Customer’s use of the Services in breach of this Agreement.

10.3. Procedure. The indemnified party shall promptly notify the indemnifying party in writing of any Claim and cooperate at the indemnifying party’s expense. The indemnifying party shall not settle any Claim without the indemnified party’s prior written consent, not to be unreasonably withheld.

10.4. Exclusions. The indemnification obligations above will not apply to the extent the underlying Loss or Claim arises from (a) the indemnified party’s breach of this Agreement, or (b) in the case of Yotascale as the indemnifying party: (1) beta releases, (2) the Customer Data, (3) access to or use of the Services in combination with hardware, system, software, network, or other materials or service provided by Customer or specified by Customer, (4) modification of the Services, or (5) any act or omission of Customer or any Authorized User.

11.1. Relationship. Each Party will be and act as an independent contractor (and not as the agent or representative of the other Party) in the performance of this Agreement.

11.2. Export Restrictions. Customer will not export from the United States or allow the export or re-export of the Services in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other similar United States or foreign agency or authority.

11.3. Entire Agreement. This Agreement, including all Order Forms, and exhibits, constitutes final and exclusive agreement between the Parties regarding the subject matter hereof. This Agreement supersedes all previous oral and written communications, understandings and agreements regarding the subject matter hereof. Yotascale will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement that is provided by Customer in any receipt, acceptance, confirmation, correspondence, purchase order, or otherwise.

11.4. No Waiver. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.5. Governing Law; Venue. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Each Party submits to the exclusive jurisdiction of the state and federal courts located in San Francisco, California and agrees to bring actions hereunder exclusively in such courts.

11.6. Severability. If one or more provisions of this Agreement are held to be illegal, unenforceable, or invalid under applicable law, such provision, or such portion of such provision as may be necessary, will be excluded from this Agreement and the balance of the Agreement will be interpreted as if such provision were so excluded and will be thereafter enforceable in accordance with its terms.

11.7. Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that either Party may assign this Agreement (a) in connection with a sale of all or substantially all of its assets, or (b) to any Affiliate.

11.8. Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth on the Order Form and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.

11.9. Force Majeure. Neither Party will be liable for or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control (other than obligations to pay fees), so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.

11.10. Order Form Counterparts. The Order Form may be executed in any number of identical counterparts, notwithstanding that the Parties have not signed the same counterpart, with the same effect as if the Parties had signed the same document. All counterparts will be construed as and constitute the same agreement. The Order Form may also be executed and delivered by PDF or other digital execution and such execution will have the same force and effect of an original document with original signatures.