This Master SaaS and Services Agreement (this “Agreement”) is entered into by and between BOSS32, INC (“BOSS”), a New York State Corporation with a primary office at 30-30 47th Avenue, Long Island City, New York 11101, and the Customer (“Customer”). BOSS and Customer are sometimes referred to jointly as the “parties” or singularly as a “party.”
BOSS is the owner and operator of BOSS Logics, a collection of cloud-based business solutions and together, a unique sales and customer relations platform and service that promotes effective, interactive engagement among together customers and their customer base, collective to be referred to as the “BOSS Platforms”.
Customer desires to obtain access to the BOSS; and BOSS wishes to provide the Services to Customer, each on the terms and conditions set forth in this Agreement.
This Agreement governs the Parties’ relation in connection with Customer’s subscription, access to, and use of the Service (as further defined below).
This Agreement sets forth the terms and conditions under which BOSS agrees to provide (i) certain hosted “software as a service” (“Subscription Services”) for certain software applications (each such application together with any applicable documentation thereto, and programming and user interfaces therefor, a “Platform”) to Authorized Users, as further set forth on each order form (“Order Form”) and (ii) if applicable, all other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management (“Professional Services” together with Subscription Services, the “Services”) related to Customer’s access to, and use of, such Subscription Services and each Platform, as further set forth on each statement of services (“Statement of Work”) issued hereunder (Order Forms and Statements of Professional Services are sometimes referred to jointly as a “Statement of Services”).
Customer will subscribe to the BOSS Platforms by executing an Order Form or Statement of Work which shall define: (i) the subscription term; (ii) applicable BOSS Logic’s Platform to which Customer subscribes; (iii) the consideration to be paid by Customer; (iv) where applicable – certain usage limits, such as the number of Authorized Users (as defined below) to whom the Service can be made available on a monthly basis; (v) where applicable – the provision of Professional Services (as defined below); and (vi) any other subscription terms that may be agreed upon by the Parties (“Order Form(s)”). Upon expiration of an applicable subscription period, the applicable Order Form may be renewed and/or replaced by a new Order Form subject to the terms defined therein.
Upon expiration of an applicable subscription period, the applicable Order Form may be renewed and/or replaced by a new Order Form subject to the terms defined therein.
1.3 The Services
Access and Use License: Subject to the terms and conditions of this Agreement, during the Term, BOSS shall use commercially reasonable efforts to provide (i) Customer and Authorized Users access to the BOSS Platforms, and (ii) Customer the Professional Services. Subject to the terms and conditions of this Agreement, during the Term, BOSS hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, nontransferable, worldwide license to access and use each Platform, solely for internal business purposes as set forth herein.
1.4 Subscription Services
Each applicable Order Form shall specify and further describe the Subscription Services to be provided in accordance with the representations and warranties set forth herein, and shall identify, each applicable Platform, user limitations, fees, subscription term and other applicable terms and conditions. If Customer engages BOSS for use of the BOSS Platforms and there is no overriding Order Form, exhibit A will serve as a the Order Form.
1.5 Professional Services
Each applicable Statement of Work shall specify and further describe the Professional Services to be provided in accordance with the representations and warranties set forth herein, and may, but need not, include, the Professional Services offered, limitations, milestones, fees, term and other applicable terms and conditions.
1.6 Changes to Platform
BOSS may, in its sole discretion, make any changes to any Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of BOSS’s products or services to its customers, (b) the competitive strength of, or market for, BOSS’s products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law.
2. Platform Access & Authorized Users
2.1 Administrative Users
During the configuration and set-up process for each Platform, Customer will identify an administrative user name and password for Customer’s BOSS account. BOSS reserves the right to refuse registration of, or cancel user names and passwords it deems inappropriate. Administrators will have the ability to create additional Authorized Users, any Authorized Users created during a billing period will be factored in as part of the total User Fee.
2.2 Authorized Users
Customer may allow such number of Customer’s employees as is indicated on an Order Form or by the Administrative Users to use the applicable Platform on behalf of Customer as “Customer Users.” Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User, but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the applicable Platform.
2.3 Authorized User Conditions to Use
2.4 Account Responsibility
Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its BOSS account, passwords (including but not limited to administrative and user passwords) and files. BOSS is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
3. Scheduled Maintenance
3.1 BOSS may from time to time suspend the BOSS Platforms for the purposes of scheduled maintenance to the BOSS Platforms, providing that such scheduled maintenance must be carried out in accordance with this Clause 3.
3.2 BOSS shall where practicable give to the Customer at least 5 Business Days prior written notice of scheduled maintenance that will, or is likely to, affect the availability of the Hosted Services or have a material negative impact upon the BOSS Platforms.
3.3 BOSS shall ensure that all scheduled maintenance is carried out outside standard business hours.
3.4 BOSS shall ensure that, during each calendar month, the aggregate period during which the Hosted Services are unavailable as a result of scheduled maintenance, or negatively affected by scheduled maintenance to a material degree, does not exceed 7 hours (approximately 0.01%).
4. Additional Restrictions & Responsibilities
4.1 Software Restrictions
Customer will not, nor permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to a Platform or any software, documentation or data related to a Platform (“Software”); (ii) modify, translate, or create derivative works based on a Platform or any Software; (iii) use a Platform or any Software for timesharing or service bureau purposes or other computer service to a third party; (iv) modify, remove or obstruct any proprietary notices or labels; or (v) use any Software or a Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software or Platform. For the avoidance of doubt, Software and the Services, including all user-visible aspects of the Services, are the Confidential Information of BOSS, and Customer will comply with Section 4 with respect thereto.
4.2 Customer Compliance
Customer shall provide all cooperation and assistance as BOSS may reasonably request to enable BOSS to exercise its rights and perform its obligations under, and in connection with, this Agreement, including providing BOSS with such access to Customer’s premises and its information technology infrastructure as is necessary for BOSS to perform the Services in accordance with this Agreement.
4.4 Training and Education
Customer shall use commercially reasonable efforts to cause Customer Users to be, at all times, educated and trained in the proper use and operation each Platform such Customer Users utilize, and to ensure that each Platform is used in accordance with applicable manuals, instructions, specifications and documentation provided by BOSS from time to time.
4.5 Customer Systems
Customer shall be responsible for obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use each Platform, including modems, hardware, servers, software, operating systems, networking, web servers and the like.
4.6 Restrictions on Export
Customer may not remove or export from the United States or allow the export or reexport of the Software or anything related to a Platform, Software or Services, or any direct product thereof in violation of any restrictions, laws or regulations of any United States or foreign agency or authority.
Software, each Platform and the Services and any documentation provided by BOSS are deemed to be “commercial computer software” and “commercial computer software documentation” pursuant to Defense Federal Acquisition Regulation Supplement, codified under Chapter 2 of Title 48, United States Code of Federal Regulations, Section 227.7202, and Federal Acquisition Regulation, codified in Title 48 of the United States Code of Federal Regulations, Section 12.12. Any use, modification, reproduction, release, performance, display, or disclosure of the Software or documentation by the United States Government is governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement.
5.1 Confidential Information
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has been, and may be, exposed to or acquired business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Confidential Information of BOSS includes non-public information regarding features, functionality and performance of each Platform and Software. Confidential Information of Customer includes non-public data provided by Customer to BOSS to enable the provision of access to, and use of, the Services as well as all content, data and information recorded and stored by each Platform for Customer (“Customer Data”), but explicitly excludes Vendor Information (defined below). The terms and conditions of this Agreement, including all pricing and related metrics, are BOSS’s Confidential Information.
Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
5.3 Non-use and Non-disclosure
With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.
5.4 Compelled Disclosure
Notwithstanding Section 4.3, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part
5.5 Remedies for Breach of Obligation of Confidentiality
The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
6. Proprietary Rights
Customer shall own all right, title and interest in and to the Customer Data. BOSS shall own and retain all right, title and interest in and to (i) each Platform, Software and the Services and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”). To the extent Customer acquires any right, title or interest in any Services IP, Customer hereby assigns all of its right, title and interest in such Services IP to BOSS.
6.2 Customer Data and Vendor Information License
Customer hereby grants to BOSS a non-exclusive, transferable, sublicensable, worldwide and royalty-free license to use and otherwise exploit (i) Customer Data to provide the Services to Customer hereunder and as necessary or useful to monitor and improve a Platform, Software and the Services, both during and after the Term, and (ii) Vendor Information for any lawful purpose. “Vendor Information” means any Vendor list or Vendor contact information that is provided to BOSS by Customer or uploaded to any Platform by or on behalf of Customer. For the avoidance of doubt, BOSS may use, reproduce and disclose Platform-, Software- and Services-related information, data and material that is anonymized, deidentified, or otherwise rendered not reasonably associated or linked to Customer or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by BOSS. It is Customer’s sole responsibility to back-up Customer Data during the Term, and Customer acknowledges that it will not have access to Customer Data through BOSS or any Platform following the expiration or termination of this Agreement.
6.3 No Other Rights. No rights or licenses are granted except as expressly set forth herein.
7. Consideration; Taxes
7.1 Subscription Fees
The Subscription Fees constitute the consideration for the BOSS Platform solution, i.e. the specific modules and features and the platform explicitly identified in the Order Form. Except as otherwise specified herein or in an Order Form: (i) the fees for the Service are based on the Service purchased and not on actual usage thereof, and fees paid are non-refundable; and (ii) Service ordered under an applicable Order Form and their respective payment obligations are non-cancelable. Notwithstanding the aforementioned, in an event of termination for cause according to Section 8.2 below, the foregoing shall not apply to amounts paid for the Service in advance, but which are unused on the date of termination (calculated on a pro-rata basis of the balance period between the termination date and the original term of the applicable Order Form), which may be refundable.
BOSS may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by BOSS thirty (30) days after the mailing date of the invoice (unless otherwise specified on the applicable Order Form). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. In addition to any other remedies available, BOSS may suspend Services in the event of payment delinquency.
7.3 Payment Disputes
If Customer believes that BOSS has billed Customer incorrectly, Customer must contact BOSS no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to BOSS’s customer support department or the applicable Account Manager.
Customer shall pay, and shall be labile for, all taxes relating to BOSS’s provision of the Services hereunder. BOSS shall pay, and shall be liable for, taxes based on its net income or capital.
7.5 No Deductions or Setoffs
All amounts payable to BOSS hereunder shall be paid by Customer to BOSS in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law.
7.6 Subpoena Expenses
If BOSS has to provide information in response to a subpoena related to Customer’s account, then BOSS may charge Customer for BOSS’s costs. Such charges may include fees for attorney and employee time spent retrieving records, preparing documents and participating in depositions or other legal process as well as other costs incurred in complying with such legal processes.
8. Term & Termination
This Agreement shall remain in effect until its termination as provided below (the “Term”). The term of each Statement of Services shall begin on the applicable “Services Effective Date” and continue for the “Service Term,” in each case as specified in such Statement of Services. Each Order Form shall renew for additional (i) one (1) year periods if the Service Term is equal to or greater than one (1) year, or (ii) periods equal to the Service Term if the Service Term is less than one (1) year (each, a “Renewal Term”), unless written notice of non-renewal is received by the other party at least sixty (60) days, but not less than thirty (30) days, prior to the expiration of the then current term.
BOSS may terminate this Agreement upon written notice to Customer if no Statement of Services is in effect. In addition to any other remedies it may have, either party may also terminate this Agreement upon written notice if the other party fails to pay any amount when due or otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days or as agreed upon by both parties after receipt of written notice of such breach from the non-breaching party. Notwithstanding the foregoing, if Customer is a state agency or a political subdivision of a state, or a federal agency or a political subdivision of the federal government, Customer may terminate this Agreement at any time (i) for convenience upon ninety (90) days’ written notice to BOSS, or (ii) if adequate funds to pay BOSS all fees owed hereunder are not appropriated to such Customer during the Term, unless otherwise authorized by law; provided, it is expressly agreed that Customer shall not activate this non-appropriation provision for its convenience, substation for another procurement system or solution, or to circumvent the requirements of this Agreement in any way.
8.3 Effect of Termination
Upon termination of the Agreement, each outstanding Statement of Services, if any, shall terminate and Customer shall immediately cease all use of, and all access to, the Subscription Services and BOSS shall immediately cease providing the Professional Services. If (i) BOSS terminates this Agreement pursuant to the second sentence of Section 7.2, or (ii) Customer terminates this Agreement pursuant to clause (i) of the last sentence of Section 7.2, all Fees that would have become payable had each outstanding Statement of Service remained in effect until expiration of its current term will become immediately due and payable.
Sections [3.1, 4–6, 7.2, 7.4, and 9–16] shall survive any termination or expiration of this Agreement. All other rights and obligations shall be of no further force or effect.
9. Warranty & Disclaimer
EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN A STATEMENT OF SERVICE, BOSS DOES NOT WARRANT THAT ACCESS TO THE PLATFORMS, SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES BOSS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. FURTHER, BOSS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY SERVICE PROVIDERS RELATING TO OR SUPPORTING A PLATFORM, INCLUDING HOSTING AND MAINTENANCE SERVICES, AND ANY CLAIM OF CUSTOMER ARISING FROM OR RELATING TO SUCH SERVICES SHALL, AS BETWEEN BOSS AND SUCH SERVICE PROVIDER, BE SOLELY AGAINST SUCH SERVICE PROVIDER. THE PLATFORMS, SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND BOSS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. Limitation of Liability
IN NO EVENT SHALL (I) EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY CUSTOMER AND VENDORS HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), AND (II) EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. Governing Laws and Dispute Resolution
This Agreement is governed in all respects by the laws of the State of New York, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement. Any dispute arising out of or relating to this Agreement, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Either party may send a notice to the other party of its intention to file a case with the AAA under this Section (“Arbitration Notice”). The arbitration will be conducted in New York, New York by a single arbitrator knowledgeable in government contracting matters and the commercial aspects of “software as a service” arrangements and intellectual property. The parties will mutually appoint an arbitrator within thirty (30) days of the Arbitration Notice. If the parties are unable to agree on an arbitrator, then the AAA will appoint an arbitrator who meets the foregoing knowledge requirements. The arbitration hearing will commence within sixty (60) days after the appointment of the arbitrator and the hearing will be completed and an award rendered in writing within sixty (60) days after the commencement of the hearing. Prior to the hearing, each party will have the right to take up to four (4) evidentiary depositions, and exchange two (2) sets of document production requests and two sets, each, of not more than ten (10) interrogatories. The arbitrator will provide detailed written explanations to the parties to support their award and regardless of outcome, each party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.
BOSS may, from time to time, host and/or maintain a Platform using a third party technology service provider and Customer acknowledges that BOSS cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.
Customer agrees that BOSS may identify Customer as a customer and use Customer’s logo and trademark in BOSS’s promotional materials. Customer may request that BOSS stop doing so by submitting an email to firstname.lastname@example.org at any time. Customer acknowledges that it may take BOSS up to 30 days to process such request. Notwithstanding anything herein to the contrary, Customer acknowledges that BOSS may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing and to third parties for purposes of due diligence.
All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided on an Order Form. All notices, consents and other communications between the parties under a Statement of Services will be sent to the recipient’s address specified thereon. All communications will be deemed to have been received on the date actually received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.
15. Force Majeure
BOSS is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Customer or any Authorized User.
Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. BOSS may sublicense any or all of its obligations hereunder. For the avoidance of doubt, a third party technology provider that provides features or functionality in connection with a Platform shall not be deemed a sublicensee under this Agreement.
17. General Provisions
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, together with Statement of Services entered into hereunder and all exhibits, annexes and addenda hereto and thereto is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever. In the event of a conflict between this Agreement and any Statement of Services, such Statement of Services shall prevail unless otherwise expressly indicated in this Agreement or such Statement of Services. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” or “Exhibit” are references to a section of, or exhibit to this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.
Last updated: May 19, 2020