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Setuply Master Services Agreement

This Master Services Agreement (“Agreement”) is entered into between Setuply, Inc., a Delaware corporation (“Setuply”) and the business entity or person identified on the applicable Order (as defined below) (“Customer”). This Agreement is effective on the effective date of the initial Order (“Effective Date”). By accessing the Service, entering into an Order, or by otherwise manifesting assent to the terms and conditions of this Agreement, Customer acknowledges that Customer has read this Agreement, understands it, and agrees to be bound by it. Customer desires to use Setuply’s project management SaaS platform, pursuant to the terms and conditions of this Agreement. The terms in any Order are automatically incorporated by reference into these Terms. Accordingly, the parties agree as follows:

 

  1. DEFINITIONS.

1.1       “Affiliate” means, with respect to a party, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity through the ownership of 50% or more of the outstanding voting securities (but only for as long as such entity meets these requirements).

1.2       “Content” means content, data, materials, and information that is owned by Setuply or any of its licensors and that is provided or made available by Setuply through use of the Platform or as part of or in connection with Setuply’s provision of Services. Content does not include Customer Data.

1.3       “Customer Data” means the data, content, materials, and information input into the Platform or otherwise provided, delivered, or made available to Setuply through the Services by or on behalf of Customer. Customer Data includes Customer Personal Data and Sensitive Data; but Customer Data does not include Usage Data, Aggregated Data, or Content.

1.4       “Documentation” means any user materials, instructions, and specifications made available by Setuply to Customer for the Services.

1.5       “Implementation Services” means Setuply’s standard implementation and set up services for the Platform.

1.6       “Order” means any written or electronic ordering or quote document in a form substantially similar to the one in Exhibit A executed by Setuply and Customer setting forth the terms and conditions relating to the Services. Each Order is incorporated by reference into this Agreement.

1.7       “Personal Data” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household.

1.8       “Platform” means Setuply’s proprietary platform utilized by Setuply to provide the Software to Customer under this Agreement. The Platform does not include Customer’s connectivity equipment, internet or network connections, hardware, software, or other equipment as may be necessary for Customer and its Users to connect to and obtain access to the Platform or to utilize the Services.

1.9       “Professional Services” means the professional services provided by Setuply as set forth in the applicable Order and provided in accordance with Exhibit B, including, without limitation, Implementation Services, training, and other Services. Professional Services do not include Standard Support Services.

1.10     “Services” means, collectively, access to the Platform, Standard Support Services, and the other services made available on, by, or through the Platform by Setuply under this Agreement, but excluding Professional Services.

1.11     “Software” means Setuply’s proprietary software-as-a-service offering as set forth in the applicable Order and made available through remote access by Setuply to Customer and Users as part of the Platform, including any modified, updated, or enhanced versions that may become part of the Software.

1.12     “Standard Support Services” means Setuply’s standard technical support and Software maintenance.

1.13     “Supplemental Support Services” means any support or maintenance services not included in, or otherwise out of scope from, Standard Support Services.

1.14     “Support Services” means, collectively, Standard Support Services together with Supplemental Support Services.

1.15     “Usage Data” means any content, data, or information that is collected or produced by the Platform in connection with use of the Services that does not identify Customer or its Users, and may include, but is not limited to, usage patterns, traffic logs, and User conduct associated with the Platform.

1.16     “Users” means Customer’s employees, independent contractors, and other individuals who are authorized by Customer to use the Services on behalf of Customer.

 

  1. SERVICES.

2.1       Provision of Services. Subject to the terms and conditions of this Agreement, Setuply shall provide the Services to Customer and its Users.

2.2       Provision of Professional Services. Subject to the terms and conditions of this Agreement, if Customer purchases Professional Services hereunder, Setuply shall provide to Customer such Professional Services pursuant to Exhibit B.

2.3       Cooperation. Customer shall supply to Setuply the Customer Data along with access and personnel resources that Setuply reasonably requests for Setuply to provide the Services.

2.4       Resources. Customer is solely responsible for, at its own expense, acquiring, installing, and maintaining all connectivity equipment, internet and network connections, hardware, software, and other equipment as may be necessary for its Users to connect to and access the Platform.

2.5       Third-Party Offerings. Setuply may make access to or use of third-party software services, applications, or functionality that link to, interoperate with, or are incorporated into the Platform available to Customer (collectively, “Third-Party Offerings”). Customer acknowledges that Setuply does not own or control such Third-Party Offerings, they are made available as a convenience only, and are not part of the Platform or subject to any of the warranties, service commitments, or other obligations with respect to the Platform under this Agreement and that such Third-Party Offerings are subject to their own terms and conditions. Any acquisition by Customer of Third-Party Offerings, and any exchange of data between Customer and/or its Users and any Third-Party Offering is solely between Customer and/or its Users and the applicable Third-Party Offering provider. Access to and use of any Third-Party Offering is at Customer’s own risk and is solely determined by the relevant third-party provider and is subject to such additional terms and conditions applicable to such Third-Party Offering. Setuply may disable or restrict access to any Third-Party Offering on the Platform at any time without notice. Setuply is not liable for Third-Party Offerings, or any Customer Data provided to a third party via a Third-Party Offering.

 

  1. GRANT OF RIGHTS.

3.1       Access Rights; Customer’s Use of the Platform. Subject to the terms and conditions of this Agreement, Setuply hereby grants to Customer, during the Term (as defined below), a non-exclusive, non-transferable (except as permitted by Section 11.3), non-sublicensable right to access and use the Platform for Customer’s and its Affiliates’ internal business purposes in accordance with the Documentation and the terms and conditions of this Agreement. Setuply and its licensors reserve all rights in and to the Platform, Software, and Services not expressly granted to Customer under this Agreement.

3.2       Restrictions on Use. Customer shall not, and shall not permit any User or third party to, (a) reproduce, display, download, modify, create derivative works of, or distribute the Platform, or attempt to reverse engineer, decompile, disassemble, or access the source code for the Platform or any component thereof; (b) use the Platform, or any component thereof, in the operation of a service bureau to support or process any content, data, or information of any party other than Customer or Customer Affiliates; (c) permit any party, other than the then-currently authorized Users to independently access the Platform; (d) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third-party, or that violates any applicable law, rule, or regulation; or (e) use the Platform to store or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses.

3.3       Users. Under the rights granted to Customer under this Agreement, Customer may permit its and its Affiliates’ independent contractors and employees to become Users in order to access and use the Platform in accordance with this Agreement; provided that Customer will be liable for the acts and omissions of all Customer Affiliates and Users to the extent any of such acts or omissions, if performed by Customer, would constitute a breach of, or otherwise give rise to liability to Customer under, this Agreement. Customer shall not, and shall not permit any User to, use the Platform, Software, or Documentation except as expressly permitted under this Agreement. Customer is responsible for all Users’ compliance with this Agreement. Notwithstanding anything to the contrary, certain authorized users of Customer’s clients or Customer’s management staff (“Client Users”) may be granted access to the Platform (or certain portions thereof), subject to Setuply’s prior approval on a basis (not to be unreasonably withheld, delayed, or conditioned). Each Client User is a User under this Agreement.

3.4       Sensitive Data. Customer acknowledges that they, Users, and Affiliates are responsible for implementing and maintaining appropriate security measures to protect any data they upload to the Platform and access, including sensitive data such as financial account information, government-issued identifiers, health information, or other sensitive information. Setuply provides the infrastructure to securely upload, manage, store, and facilitate access to and communication of this data among authorized parties, but the responsibility for ensuring compliance with applicable laws and regulations, as well as for managing the data appropriately, rests with the Customer.

Customer further acknowledges that all data uploaded to the Platform remains accessible to them, and Setuply bears no responsibility or liability for how the Customers, Users,  or any authorized Affiliates access, manage, handle, communicate, or protect such data beyond the secure storage and management infrastructure provided by Setuply. Additionally, Setuply is not responsible for the implementation or enforcement of data deletion policies; these are solely the responsibility of the Customer, Users, and Affiliates and must comply with applicable laws and regulations.

Customer represents warrants and covenants that: (i) Customer has the full right and authority to grant the licenses to any such Customer Data as set forth in this Agreement; (ii) neither the Customer Data nor Setuply’s performance of its obligations (including the Services) or its exercise of the rights granted in this Agreement, will infringe upon any copyright, patent, trademark, right of publicity or privacy, or any other proprietary or intellectual property right of any person or entity, whether contractual, statutory, or common law; (iii) Customer and all Customer Data will comply with all applicable laws, rules, and regulations; and (iv) Customer has obtained all necessary rights, consents, permissions, waivers, licenses, and releases required or desirable for Setuply to perform the Services in compliance with all applicable laws, rules, and regulations.

If Customer, any Users, or Affiliates upload, access, or manage any Sensitive Data to the Platform in violation of this Section 3.4, Setuply may, without limiting any of its other rights and remedies, delete such Sensitive Data or suspend Customer’s (and its Users’) access to the Services until such violation has been cured to Setuply’s reasonable satisfaction.

 

  1. FEES AND PAYMENT TERMS.

4.1       Price. Customer shall pay Setuply the fees set forth in the applicable Order or as described in this Section 4 (“Fees”) in accordance with the terms of this Agreement. Fees are exclusive of, and Customer shall pay all taxes, fees, duties, and other governmental charges arising from the payment of any Fees or any amounts owed to Setuply under this Agreement (excluding any taxes arising from Setuply’s income or any employment taxes). Fees for any Services requested by Customer that are not set forth in Exhibit A or an Order will be charged as mutually agreed to by the parties in writing.

4.2       High-Water Mark. Fees for each period will be calculated based on the maximum number of Users (excluding Client Users) at any time during that period (the “High-Water Mark” for that period). For purposes of calculating the High-Water Mark, for illustrative purposes only: if the Term length is 1 year and there are 20 Users at the beginning of the first month, and then during that month 5 Users are added and 2 are later removed (regardless of what month), then the High-Water Mark of Users would be 25 Users, and the Fees for such month and each subsequent month for the duration of the Term would be based on 25 Users, unless and until more Users are added, which would result in a new High-Water Mark for the applicable subsequent month(s).

4.3       Committed Period Subscriptions. If the applicable Order shows that Customer will pay for a committed period, such as a set number of months or years, all such Fees will be invoiced in advance at the billing frequency specified in the Order based on the number of Users (excluding Client Users) specified in the Order (the “Committed Quantity”). If the High-Water Mark exceeds the Committed Quantity in any month, Setuply may invoice, and Customer will pay, the difference between the Committed Quantity and the High-Water Mark, based on the price per User set forth in the applicable Order, for such month.

4.4       Payment. Customer shall pay to Setuply all Fees within 10 days after Customer’s receipt of the applicable invoice. If Customer disagrees with any Fees set forth in an invoice, Customer must notify Setuply of the dispute within 10 days after receipt of such invoice. If Setuply does not receive notice of a dispute during such 10-day period, Customer will be deemed to have accepted the Fees set forth in the invoice. All payments received by Setuply are non-refundable except as otherwise expressly provided in this Agreement or an applicable Order. Customer shall make all payments in United States dollars.

4.5       Pricing Adjustments. Unless otherwise stated in an applicable Order, commencing one year after the Effective Date of this Agreement, and at each subsequent anniversary thereof, pricing may be adjusted by Setuply with at least ninety (90) days’ prior written notice to Customer, provided that in no event may Setuply increase the pricing by more than the greater of: (a) five percent (5%), and (b) the annual inflation rate for the preceding 12 months, as measured by the Consumer Price Index – All Items for U.S. City Average.

 

  1. TERM AND TERMINATION.

5.1       Term. This Agreement commences on the Effective Date and, unless terminated earlier in accordance with this Agreement, continues for so long as any Order remains in effect (“Term”).

5.2       Order Term. Unless otherwise expressly provided in an Order, the initial term of an Order begins on the effective date set forth in the Order and continues for a period of three years (“Initial Term”), and thereafter will automatically renew for additional one-year periods (each, a “Renewal Term” and together with the Initial Term, the “Order Term”), unless a party gives the other party written notice of its intent to not renew such Order at least 30 days prior to the end of the then-current Order Term.

5.3       Termination for Cause. A party may terminate this Agreement or any Order upon written notice if the other party breaches any material provision of this Agreement and (provided that such breach is capable of cure) does not cure such breach within 30 days after being provided with written notice of such breach from the non-breaching party.

5.4       Effects of Termination. Upon expiration or termination of this Agreement and all Orders: (a) all amounts owed to Setuply under this Agreement before such expiration or termination will be due and payable in accordance with Section 4; (b) Customer’s rights granted in this Agreement will immediately cease; (c) Customer shall promptly discontinue all access to and use of the Platform and return or erase, all copies of the Documentation in Customer’s possession or control; and (d) Setuply shall, upon Customer’s advance written request and subject to Customer’s payment of the then-current rates for such data retrieval Professional Services, make Customer Data available for download or export (e.g., via SFTP) for 30 days following such termination or expiration; however, if Customer does not make such a request prior to the effective date of termination or expiration, Setuply shall promptly erase all Customer Data, except that Setuply may retain Customer Data in Setuply’s archived backup files. Sections 1, 4, 5.4, 6, 7.3, 8, 9, 10, and 11 survive any expiration or termination of this Agreement.

5.5       Suspension. Notwithstanding anything to the contrary in this Agreement, Setuply may suspend Customer’s access to the Platform if Setuply determines that: (a) there is an attack on the Platform; (b) Customer’s or any of its Users’ use of the Platform poses a reasonable risk of harm or liability to Setuply and, if capable of being cured, Customer is not taking appropriate action to cure such risk; (c) Customer has breached Sections 3.2 or 10; (d) Customer’s or its Users’ use of the Platform violates applicable laws, rules, or regulations; or (e) Customer has failed to pay any undisputed charge owed under this Agreement when due and has failed to cure such late payment within 15 days after Setuply has provided Customer with written notice of such late payment. Setuply shall use reasonable efforts to provide Customer with notice of such suspension. Setuply may suspend Customer’s access to the Platform until the situation giving rise to the suspension has been remedied to Setuply’s reasonable satisfaction. Setuply’s suspension of Customer’s access to the Platform will not relieve Customer of its payment obligations under this Agreement and Customer will not be eligible for any Downtime Credits due to Platform unavailability under Exhibit C.

 

  1. PROPRIETARY RIGHTS.

6.1       Customer Data. As between the parties, Customer or its Clients owns all right, title, and interest in Customer Data, including all intellectual property rights therein.

6.2       Customer Data License Grant. Customer hereby grants to Setuply and its Affiliates and authorized representatives and contractors, during the Term, a limited, non-exclusive, non-transferable (except as permitted by Section 11.3) license to use the Customer Data solely for the limited purpose of performing the Services for Customer and fulfilling its other obligations and exercising its rights under this Agreement.

6.3       The Services. All proprietary technology utilized by Setuply to perform its obligations under this Agreement, and all intellectual property rights in and to the foregoing, as between the parties, are the exclusive property of Setuply. Setuply or its third-party licensors retain ownership of all right, title, and interest to all copyrights, patents, trademarks, trade secrets, and other intellectual property rights in and to the Content and the Platform, including, without limitation, the Software, Documentation, customizations, and enhancements, and all processes, know-how, and the like utilized or created by Setuply in performing under this Agreement. Any rights not expressly granted to Customer hereunder are reserved by Setuply.

6.4       Aggregated Data. Notwithstanding anything in this Agreement to the contrary, Setuply may analyze Customer Data to create a de-identified and aggregated data set that does not identify Customer or its Users (collectively, “Aggregated Data”). Setuply retains ownership of all right, title, and interest in and to Aggregated Data. Setuply may use Aggregated Data for any lawful purpose, including, but not limited to, to improve, market, and provide the Services.

6.5       Usage Data. Setuply retains ownership of all right, title, and interest in and to the Usage Data. Setuply may use Usage Data in connection with its performance of its obligations in this Agreement and for any other lawful business purpose, including, but not limited to, benchmarking, data analysis, and to improve Setuply’s services, systems, and algorithms.

 

  1. WARRANTY; DISCLAIMERS.

7.1       Access to the Platform. Setuply warrants that the Platform will perform materially in accordance with the Documentation and this Agreement. Setuply does not warrant that the Platform will be completely error-free or uninterrupted. If Customer notifies Setuply of a reproducible error in the Platform that indicates a breach of the foregoing warranty (each, an “Error”) within 30 days after Customer experiences such Error, Setuply shall, at its own expense and as its sole obligation and Customer’s exclusive remedy (except for Downtime Credits that Customer may be entitled to receive due to Platform unavailability under Exhibit C): (a) use commercially reasonable efforts to correct or provide a workaround for such Error; or (b) if Setuply is unable to correct or provide a workaround for such Error within 60 days after receiving notice of such Error from Customer, Customer may terminate this Agreement upon notice to Setuply and, Setuply shall refund the amounts paid by Customer for access to the Platform for the period during which the Platform was not usable by Customer. The warranties set forth in this Section 7.1 do not apply to any Third-Party Offerings or cover any Error caused by: (i) Customer or its Users; (ii) use of the Platform in any manner or in any environment inconsistent with its intended purpose; (iii) Customer’s hardware or software if modified or repaired in any manner which materially adversely affects the operation or reliability of the Platform, or (iv) any equipment, software, or other material utilized by Customer in connection with the Platform contrary to the provider’s instructions.

7.2       Right to Customer Data. Customer represents and warrants that it has the right to: (a) use the Customer Data as contemplated by this Agreement; and (b) grant Setuply the license in Section 6.2.

7.3       Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND AND EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

 

  1. INDEMNIFICATION.

8.1       Claims Against Customer. Setuply shall defend any claim, suit, or action against Customer brought by a third party to the extent based on an allegation that the Software infringes any intellectual property rights of such third party (a “Customer Claim”), and Setuply shall indemnify and hold Customer harmless, from and against damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying Setuply in writing of such Customer Claim; (b) giving Setuply sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Setuply’s request and expense, assisting in such defense. In the event that the use of the Platform is enjoined, Setuply shall, at its option and at its own expense either: (i) procure for Customer the right to continue using the Platform; (ii) replace the Software with a non-infringing but functionally equivalent product; (iii) modify the Software so it becomes non-infringing; or (iv) terminate this Agreement and refund the amounts Customer paid for access to the Platform that relate to the period during which Customer was not able to use the Platform. Notwithstanding the foregoing, Setuply will have no obligation under this Section 8.1 with respect to any infringement claim based upon: (1) any use of the Platform not in accordance with this Agreement; (2) any use of the Platform in combination with products, equipment, software, or data that Setuply did not supply or approve of if such infringement would have been avoided without the combination with such other products, equipment, software, or data; (3) any modification of the Platform by any person other than Setuply or its authorized agents or subcontractors; or (4) any Third-Party Offering. This Section 8.1 states Setuply’s entire liability and Customer’s sole and exclusive remedy for infringement claims or actions.

8.2       Claims Against Setuply. Customer shall defend any claim, suit, or action against Setuply brought by a third party to the extent that such claim, suit, or action is based upon Setuply’s use of any Customer Data in accordance with this Agreement or Customer’s use of any Customer Data (a “Setuply Claim”) and Customer shall indemnify and hold Setuply harmless, from and against Losses that are specifically attributable to such Setuply Claim or those costs and damages agreed to in a settlement of such Setuply Claim. The foregoing obligations are conditioned on Setuply: (a) promptly notifying Customer in writing of such Setuply Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer will have no obligation under this Section 8.2 or otherwise with respect to any Setuply Claim to the extent based upon Setuply’s use of the Customer Data in violation of this Agreement.

  1. LIMITATIONS OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR OWED BY CUSTOMER TO SETUPLY UNDER THIS AGREEMENT DURING THE INITIAL TERM OR RENEWAL TERM, AS THE CASE MAY BE, DURING WHICH THE EVENTS GIVING RISE TO SUCH LIABILITY OCCURRED. THE EXCLUSIONS AND LIMITATION OF LIABILITIES SET FORTH IN THIS SECTION 9 DO NOT APPLY TO A PARTY’S OBLIGATIONS UNDER SECTION 8, TO LIABILITY ARISING FROM A PARTY’S BREACH OF SECTION 10, OR TO LIABILITY ARISING FROM CUSTOMER’S BREACH OF SECTION 3.2.

 

  1. CONFIDENTIALITY.

10.1     Definitions. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Agreement during the Term. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary or confidential to Discloser or to a third party based on the nature of the information or the circumstances surrounding its disclosure. Setuply’s Confidential Information includes, without limitation, Software and Documentation. Customer’s Confidential Information includes, without limitation, Customer Data.

10.2     Protection. Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Agreement and shall not disclose Confidential Information to anyone other than Recipient’s employees and independent contractors who have a need to know such Confidential Information for purposes of this Agreement and who are subject to confidentiality obligations no less restrictive than Recipient’s obligations under this Section 10. Recipient will be liable to the Discloser for any of its employees and independent contractor’s acts or omissions, which, if performed by Recipient, would constitute a breach of this Section 10. Recipient shall protect Confidential Information from unauthorized use, access, and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

10.3     Exceptions. Recipient shall have no confidentiality obligations under Section 10.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient prior to Discloser’s disclosure; (b) is disclosed to Recipient free of any confidentiality obligations by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the party who disclosed the information; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of Confidential Information. Recipient may disclose Confidential Information if and to the extent required to as part of a judicial process, government investigation, legal proceeding, or other similar process on the condition that, to the extent permitted by applicable law, Recipient gives prior written notice of such requirement to Discloser. Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser.

 

  1. GENERAL.

11.1     Independent Contractor. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.

11.2     Subcontractors. Setuply may utilize subcontractors, subprocessors, and other third-party service providers (collectively, “Subcontractors”) in the performance of its obligations, provided that Setuply will remain liable and responsible for the Subcontractors’ acts and omissions to the extent any of such acts or omissions, if performed by Setuply, would constitute a breach of, or otherwise give rise to liability to Setuply under, this Agreement when they are performing for or on behalf of Setuply.

11.3     Assignment. Neither party may assign this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent; except that a party may assign this Agreement without consent from the other party to (a) an Affiliate; or (b) any successor to its business or assets to which this Agreement relates, whether by merger, acquisition, or sale of all or substantially all of its assets, or otherwise. Any attempted assignment in violation of the foregoing will be void and of no force or effect.

11.4     Force Majeure. Except for payment obligations, neither party will be liable for any breach of this Agreement, or for any delay or failure of performance, resulting from any cause beyond that party’s reasonable control.

11.5     Notices. To be effective, notices under this Agreement must be delivered in writing by courier, or certified or registered mail (postage prepaid and return receipt requested) to the other party at the address for each party first set forth in the signature block of the applicable Order and will be effective upon receipt, except that e-mail may be used for routine communications and to obtain operational approvals and consents but may not be used for any other notices unless otherwise mutually agreed by the parties. Notwithstanding the foregoing, a copy of all notices to Setuply should be sent to legal@setuply.com.

11.6     Governing Law; Venue. The laws of the State of New Hampshire govern this Agreement and any matters related to this Agreement, without regard to any conflicts of laws principles that would require the application of the laws of a different jurisdiction. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in the State of New Hampshire in any litigation arising out of this Agreement or the Services.

11.7     Remedies. Each party acknowledges that any actual or threatened breach of Sections 3.2 or 10 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party.

11.8     Compliance with Laws. Each party shall comply with all laws, rules, and regulations, applicable to that party in connection with this Agreement.

11.9     Waivers. To be effective, any waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

11.10   Severability. If any provision of this Agreement is unenforceable, the other provisions of this Agreement will be unimpaired, and the unenforceable provision will be deemed modified so that it is enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).

11.11   Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.

11.12   Entire Agreement. This Agreement, including any Order and any applicable exhibits or attachments, constitutes the final and entire agreement between the parties regarding the subject matter hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. No terms and conditions proposed by either party will be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of this Agreement and the provisions of any Order, the provisions of this Agreement will govern unless the Order specifically overrides this Agreement. No amendment to this Agreement will be effective unless in writing and signed by the party to be charged.

 

Exhibit A

A Form of Order

This Order (“Order”), dated as of the date of the Customer signature below (“Effective Date”), is by and between Setuply, Inc., a Delaware corporation (“Setuply”) and the customer identified below (“Customer”). This Order is entered into pursuant to and is governed by that certain Master Software-as-a-Service Agreement, available at: https://www.setuply.com/msa, between Customer and Setuply (the “Agreement”), which is incorporated herein by reference and for references and is applicable to Customer’s purchase of all Services from Setuply. All capitalized terms used but not defined in this Order have the respective meanings ascribed to them in the Agreement. This Order may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.

 

Customer Information:

Customer Name:        

Executing Contract:

Email Address:          

Phone:            

Title:             

Address:         

Billing Contact:         

                                                  

Order Term: The term of this Order will begin on the Order Effective Date and will continue for a period of one year (the “Initial Term”), after which it will automatically continue to renew for successive one-year periods (each, a “Renewal Term” and together with the Initial Term, the “Order Term”), unless either party gives the other party written notice of its intent not to renew this Order at least 30 days prior to the end of the then-current Order Term.

 

Services:

Platform Access: Subject to the limitations and restrictions set forth herein and, in the Agreement, Setuply will provide Customer access to Setuply’s project management SaaS platform that includes

Product Tier – reflected on the individual Quote/Order document

 

Product Modules:

  • Client IMPACT Control Panel (email customization and configuration, questionnaire configuration)
  • ScaleUP Onboarding Engine (checklists, templates, workflows, tasks, and subtasks
  • Professional Services Automation (work management, analytical reports, advanced staff management, and scheduling assistant)
  • Secure Data Staging & Management (security, access, mapping, and validation)

 

Professional Services:

  • Implementation Services: (one-time setup and standard/non-standard implementation, custom integration work, development)
  • Supplemental Support Services (beyond that which is covered in Standard Support Services) listed in this order.

 

Limitations and Restrictions:

Usage Limitations: Customer may only permit a maximum of up to and not to exceed number of Users specified on the Order (who are not also Client Users) to access and use the Services without having to pay excess usage fees as specified in Sections 4.2 and 4.3 of the Agreement and the “Payment Terms” Section below; however, the number of Client Users are not so limited. The only usage limitation with respect to Client Users is that Customer must obtain Setuply’s prior written approval for each such Client User’s access to and use of the Services.

Affiliates: Are Customer’s Affiliates within scope of the Services?   ☐ Yes   ☐   No

Sensitive Data: Is Sensitive Data within scope of the Services? If ‘Yes’, describe permitted Sensitive Data.

☐   Yes   However, the only type(s) of Sensitive Data permitted under this Order includes the type of data described in the specific Order form.

☐   No

 

Fees and Payment Terms:

Fees:

  • Platform Access Fees (inclusive of Standard Support Services):

Committed Quantity: Number of Users per month

Price per User: $ per month

 

  • Professional Services Fees:

One-time Setup and Standard Implementation: to be provided in the specific Order form.

 

One-time Non-Standard Implementation: to be provided in the specific Order form.

Future Custom Development: Provided on a time and materials basis according to the following rates: to be provided in the specific Order form.

Supplemental Support Services Fees: to be provided in the specific Order form.

 

Payment Terms:

  • All fees payable 12 months in advance based on the Committed Quantity. If the High-Water Mark (as that term is defined in the Agreement) for Customer exceeds the Committed Quantity in any month, Customer will be billed the difference between the Committed Quantity and the High-Water Mark, based on the price per User, for such month.
  • Except for any one-time implementation Fees which [will be billed on the initial invoice]/[are due and payable upon the execution of this Order], all Professional Services Fees will be invoiced monthly in arrears.
  • All payments hereunder are due within 30 days of Customer’s receipt of the applicable invoice.

Additional Terms:

 

The parties have caused their duly authorized representatives to execute this Order (incorporating the Agreement) as of the dates set forth below.

 

[CUSTOMER]

Setuply, Inc.

Signature:                                                                

Signature:                                                              

Printed:                                                                   

Printed:                                                                  

Title:                                                                        

Title:                                                                       

Date:                                                                        

Address for Notice:

Date:                                                                      

Address for Notice:

Exhibit B

Professional Services

Subject to the terms and conditions of the Master Software-as-a-Service Agreement between Customer and Setuply to which this Exhibit B is attached and hereby incorporated therein (the “Agreement”) and this Exhibit B (including payment of the applicable Fees), Setuply shall provide the Professional Services to Customer as set forth below; provided that the terms and conditions in this Exhibit B apply only if Customer has purchased Professional Services.

  1. Professional Services. Setuply shall perform the Professional Services for Customer as described in the applicable Order. Each Order will contain descriptions of the Professional Services and a description of any Deliverables (as defined below) to be provided by Setuply, the Fees for the Professional Services, and any additional terms and conditions the parties deem appropriate. Customer acknowledges that any schedules or timelines for Professional Services set forth in the applicable Order are not firm or fixed performance dates and are only to be regarded as estimated beginning and completion dates for the Professional Services. All Professional Services and Deliverables will be deemed accepted upon delivery.
  2. Changes. Each party may request changes that affect the scope or duration of the Professional Services. Neither party shall be bound by any change requested by the other party, unless such change has been agreed to in writing by authorized representatives of each party (each, a “Change Order”). Each Change Order will be subject to the terms and conditions of this Agreement.
  3. Customer Materials and Assistance. Customer acknowledges that in order to perform the Professional Services, Setuply requires access to certain intellectual property, content, data, information, and materials of Customer or Customer’s suppliers (collectively, “Customer Materials”). Customer shall provide Setuply with the Customer Materials, along with any assistance, access, and personnel resources that Setuply reasonably requests in order for Setuply to perform the Professional Services. Customer acknowledges that Setuply’s ability to successfully perform the Professional Services is contingent upon Setuply’s receipt from Customer of such Customer Materials and such assistance, access, and personnel resources. Accordingly, Setuply will not be deemed in breach of this Agreement and will have no liability for failure to perform, or any other deficiencies in, the Professional Services or for damages resulting from: (a) Customer’s failure to provide any Customer Materials or any such assistance, access, and personnel resources; (b) the acts or omissions of Customer, its agents, or employees; or (c) performance of the Professional Services in accordance with Customer’s instructions.
  4. Customer Information. Customer acknowledges that Setuply may, in performing the Professional Services, be dependent upon or use data, material, and other information furnished by Customer without any independent investigation or verification thereof, and that Setuply may rely upon the accuracy and completeness of such information in performing the Professional Services. Setuply, in performing the Professional Services, will be making recommendations, and providing advice, but all decisions as to implementing such advice and recommendations will be made by Customer and will be Customer’s sole responsibility and Setuply may rely on all such Customer decisions.
  5. Ownership. “Setuply Intellectual Property” means any ideas, concepts, know-how, knowledge, techniques, tools, approaches, methodologies, templates, operating instructions, standardized features, other technology, or any intellectual property rights created, developed, owned, or licensed by Setuply: (a) prior to the Order Effective Date of the applicable Order for Professional Services; (b) during the term of the applicable Order for Professional Services but outside the scope of this Agreement and the applicable Order for Professional Services; or (c) during the term of the applicable Order for Professional Services that have applicability to Setuply’s provision of any services to its customers generally. Other than Setuply Intellectual Property, all deliverables that Setuply provides specifically and exclusively for Customer and that are identified as a deliverable under the applicable Order (collectively, the “Deliverables”), and all patents, copyrights, trade secrets, or other proprietary rights in or to the Deliverables, are and will be Customer’s sole and exclusive property, and Setuply hereby assigns ownership of such Deliverables to Customer (excluding in all cases any Setuply Intellectual Property embodied or incorporated therein). Notwithstanding the foregoing, Setuply retains all worldwide right, title, and interest in and to the intellectual property rights embodied in the Setuply Intellectual Property. Nothing in this Agreement prevents Setuply from creating derivative works based on the Setuply Intellectual Property, developing, modifying, using, marketing, distributing, or otherwise commercially exploiting the Setuply Intellectual Property in any manner. Setuply reserves all rights not expressly granted to Customer under this Exhibit B.
  6. Limited Warranty. Setuply warrants to Customer that: (a) the Professional Services will be performed in a professional manner consistent with industry standards; and (b) the Deliverables, when delivered, will materially conform to the specifications set forth in this Agreement and the applicable Order. If Customer notifies Setuply of a breach of the foregoing warranty specifying the breach in reasonable detail within 30 days after Setuply performs the Professional Services or delivers the applicable Deliverables, Setuply shall, at its own expense and as its sole obligation and Customer’s exclusive remedy for breach of the foregoing warranty: (i) use commercially reasonable efforts to re-perform the Professional Services or re-deliver the applicable Deliverables which gave rise to the breach; or (ii) if Setuply cannot re-perform such defective Services or re-deliver such defective Deliverables to Customer within 60 days after receiving notice of the breach, Customer may terminate this Agreement upon written notice to Setuply, and Setuply shall refund to Customer the Fees paid for such defective Professional Services and/or Deliverables.

 

Exhibit C

Service Availability

Setuply uses commercially reasonable efforts to ensure access to our online application twenty-four hours a day, seven days a week, subject to scheduled maintenance and events beyond our reasonable control, including interruption in any third-party software or services or failure for such third-party providers to perform.

  • Service availability includes the application, data transfer, and validation.
  • Preventative maintenance is scheduled during off peak business hours.
  • If and when known downtime is to occur, such information is shared at least seven (7) days in advance to avoid or otherwise minimize service availability issues.
  • Guaranteed service availability for services is ninety-nine-point five percent (99.5%) average monthly uptime.
  • Downtime is measured by our internal system monitoring tools and third-party reporting tools based on the total number of minutes in a calendar month that the application, data transfer and validation were available divided by the total number of minutes in that calendar month expressed as a percentage.

 

Exclusions

Downtime does not include, without limitation, instances where the application, data transfer and/or validation were unavailable because of one or more of the following reasons:

  • Periods of scheduled or preventative maintenance
  • Acts of God, strikes, lockouts, labor restrictions by any governmental authority, civil riot, floods, and any other cause that, in each case, is not reasonably within the control of us and which by the exercise of reasonable diligence by our team was unable, wholly or in part, to prevent or overcome.
  • Failure of network connections of telecommunication employed by others or impacts by a regional or wide-spread internet outage, which cause inability to reach the application, or otherwise affect data transfer or validation.
  • Any domain name system (DNS), or outages, including malicious attacks, distributed denial of service attacks (DDOS), DNS propagation issues and expirations elsewhere on the internet that could not have reasonably been prevented by us using commercially reasonable measures generally employed by electronic data interchange services.

 

Severity Levels

Setuply shall designate the priority level (“Priority Level”) of each Error that Customer reports. If there is dispute over the classification, Customer shall promptly notify Setuply, and the parties will make their best efforts to resolve any such disagreement. Setuply shall not delay Setuply’s actions to resolve the problems reported because of such disagreement. If Customer does not notify Setuply of its objection to a classification no later than 5 days after Setuply notifies Customer of the classification, Customer will be deemed to have accepted such classification.

 

The Severity Level for any given error or defect will be reasonably determined by us in accordance with the following definitions:

  • High: Produces an emergency in which the application is entirely inoperable, or a critical function of data transfer or validation is inoperative, causing a major impact on your business operations.
  • Medium: Produces a non-critical situation in which the application produces incorrect results or a feature of the application, data transfer or validation is inoperative, causing a minor impact on Customer business operations or there are possible workarounds or alternative methods to continue business operations.
  • Low: General questions and/or inquiries causing little or no impact on Customer business operations.

 

Customer may notify Setuply of Errors or other support request issues by calling Setuply’s general office number referenced inside the account interface by e-mailing an assigned Setuply support representative, or by utilizing the technical support link within the Platform.

Setuply shall use commercially reasonable efforts to respond to Errors reported to it by Customer within the initial response period in the table below for the applicable Priority Level (“Initial Response Time”) and correct such Error within the resolution response time for the applicable Priority Error Level and Service Level.

 

Initial Response Times Response Times for Each Priority Level.

High: 4 Business Hours

Medium: 1 Business Day

Low: 2 Business Days

 

Response times exclude any period of time where Setuply is waiting for information from Customer or other applicable third parties, Customer or a third party is further debugging a problem, or confirmation that an issue has been resolved. Response times do not infer resolution.

 

Downtime Credits

If Setuply is unable to cure a Priority 1 problem within 3 Business Days after first notification by Customer of the problem through the fault of its own, Customer may request a credit. If Customer requests a credit in accordance with the foregoing sentence, Company shall provide Customer with a credit of one percent (1%) of the monthly Services Fees attributable to Platform access (applicable to the then-current Services month) for each full day the problem remains unresolved.

If Setuply is unable to cure a Priority 2 problem within 7 Business Days after first notification by Customer of the problem, through the fault of its own, Customer may request a credit. If Customer requests a credit in accordance with the foregoing sentence, Company shall provide Customer with a credit of two percent (2%) of the monthly Services Fees attributable to Platform access (applicable to the then-current Services month) for each full week the problem remains unresolved.

If Setuply is unable to cure a Priority 3 problem within 20 Business Days after first notification by Customer of the problem, through the fault of its own, Customer may request a credit. If Customer requests a credit in accordance with the foregoing sentence, Company shall provide Customer with a credit of ½ of one percent (.5%) of the monthly Services Fees attributable to Platform access (applicable to the then-current Services month) for each full week the problem remains unresolved.

Credits to the Services for any particular month will be capped at the total amount of the monthly Services Fees attributable to Platform access paid by Customer for the then-current Services month.

 

Customer Support

Setuply technical support staff is available 8:30 a.m. through 8:30 p.m. US Eastern Standard Time during business days excluding any Setuply’s or national holidays (“Business Day”).

 

New Orders: sales@setuply.com

Customer Support feedback@setuply.com

Billing: billing@setuply.com

Emergency: 911@setuply.com