This Agreement sets forth the terms under which RewardCo will provide Customer with access to and use of certain software-as-a-service offering(s) (‘SAAS’) identified in the applicable Subscription Order Form (collectively, the ‘Services’). The term ‘Subscription Order Form’ shall mean any ordering document used to order such Services which is executed by the Customer and RewardCo.
The parties hereby agree as follows:
1.1 Access Rights. RewardCo hereby grants Customer, during the Term, a limited, nontransferable and nonexclusive license for Customer’s clients, employees and third party consultants (‘Authorized Users’) to use the Services in accordance with the use parameters described in the Subscription Order Form, solely for Customer’s reward program purposes consistent with the terms and conditions of this Agreement.
1.2 Administration. RewardCo will issue to one Authorized User (‘Administrator’) an individual login identifier and password (‘Administrator’s Login’) for purposes of administering the Services. Using the Administrator’s Login, the Administrator shall assign each remaining Authorized User a unique Login identifier and password and assign and manage the rules that control each such Authorized User’s access to the Services. Customer shall ensure that each Authorized User will: (a) not disclose their login identifier to any person or entity; (b) not permit any other person or entity to use their login identifier and (c) use the Services solely in accordance with the terms and conditions of this Agreement.
1.3 Restrictions. Customer and its Authorized Users shall be prohibited from and will not:
2.1 Application and Use Fee. In consideration of the license rights to the Service(s) granted in Section 1.1., Customer shall pay the fees specified in the Subscription Order Form. RewardCo shall invoice Customer for all amounts payable to RewardCo hereunder which shall be due within 30 days of Customer’s receipt of such invoice. Late payments will incur interest in an amount equal to the lesser of ___% per month or the maximum allowable under applicable law.
2.2 Redemption Account Funds. Customer shall pay an initial deposit as specified in the Subscription Order Form that will be held by RewardCo in a Redemption Account. The Redemption Account Funds shall be utilized for redemption claimed by Authorized Users.
3.1 Customer Warranty. Customer represents, warrants and covenants to RewardCo that:
3.2 RewardCo Warranty. RewardCo warrants that:
3.3 Disclaimer. Except as set forth in Section 3.2, RewardCo makes no representations or warranties, whether express or implied regarding or relating to any of the Services or any other matter covered by this Agreement. REWARDCO SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. RewardCo does not guarantee that Customer’s access to the Services will be uninterrupted or error free. RewardCo does not warrant the accuracy, reliability, completeness or timeliness of the content of Internet Web sites or other data received by Customer via the Internet.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF OR DAMAGE TO THE OTHER PARTY’S CONTENT OR DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER ALLEGED AS A BREACH OF CONTRACT, TORT OR OTHER FORM OF ACTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REWARDCO’S LIABILITY UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES OF ANY KIND WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO REWARDCO UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.
‘Confidential Information’ means information that Customer and its authorized users upload in its usage of the Services hereunder (‘Customer Data’), the terms of this Agreement, the Services, any software provided by RewardCo under this Agreement, the logon login identifiers and passwords provided to Customer and its Authorized Users, the fees charged under this Agreement, any other materials marked confidential by Customer or RewardCo and any other information conveyed under this Agreement that is identified in writing as confidential at the time of its conveyance. Each party acknowledges and agrees that:
6.1 Proprietary Rights. Except for the license granted in Section 1.1, no right title or interest of intellectual property or other proprietary rights in and to the Services made available under this Agreement is transferred to Customer hereunder. RewardCo retain all right, title and interests, including, without limitation, all copyright and other proprietary rights in and to the Services and all, modifications, enhancements and derivatives thereof. Customer will retain all right, title and interest to the data and documents created by Customer or Authorized Users using the Services.
6.2 Indemnity. RewardCo shall indemnify and defend Customer against any third party claims that the Services infringe any patent, copyright or other intellectual property right owned by a third party; provided that RewardCo is given prompt notice of such claim and is given information, reasonable assistance and sole authority to defend or settle the claim.
7.1 Term. The initial term of this Agreement shall be the term specified on the Subscription Order Form. After expiration of the initial term specified on the Subscription Order Form the Customer’s subscription to the Services shall automatically renew for successive one year periods (the initial term and each renewal term, a ‘Term’) unless either party provides written notice of nonrenewal at least 30 days prior to commencement of the applicable renewal term. Written notice of an increase in fees for any renewal term shall be provided to Customer at least 30 days prior to commencement of the applicable renewal term.
7.2 Termination by RewardCo. RewardCo shall have the right, upon notice to Customer, to suspend the Services and/or terminate this Agreement if:
7.3 Termination by Customer. Customer will have the right, upon notice to RewardCo, to terminate this Agreement if RewardCo is in material breach of this Agreement and RewardCo fails to remedy such material breach within 30 days of its receipt of such notice or (c) RewardCo (i) terminates or suspends its business activities; (ii) liquidates all or a substantial portion of its assets for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority to effect such liquidation of assets; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes to effect such liquidation of assets.
7.4 Early Termination Fees. If Customer cancel this Agreement before the term for has expired, RewardCo will charge an Early Termination Fee as specified in the Subscription Order Form. The Early Termination Fee is not a penalty, but rather a charge to compensate us for your failure to satisfy the commitment of utilizing our service for the term of this Agreement.
7.5 Data Extraction. Upon any termination and for a period of 30 days thereafter, Customer may request and RewardCo shall provide Customer with a copy of the data/files uploaded pursuant to the Services provided under the Agreement by Customer and its third party candidates in a the applicable format indicated below. Customer may request and RewardCo shall provide such data at any time during the term of this Agreement for its then current administrative fee for such service (currently $___ per database per time). RewardCo shall provide the Customer with access to an FTP file server for the purpose of retrieving files. These files are then purged from the RewardCo FTP site after 14 days.
7.6 Survival. Any provisions necessary to interpret the respective rights and obligations of the parties hereunder shall survive any termination or expiration of this Agreement, regardless of the cause of such termination or expiration.
8.1 Oceana. If the Customer address referenced in the Order Form is located in Australia or New Zealand:
8.2 EMEA. If the Customer address referenced in the Order Form is located in Europe, the Middle East or Africa:
8.3 Asia. If the Customer address referenced in the Order Form is located in Asia:
8.4 North America. If you are in North America the governing law shall be the laws of state of ________ , excluding its rules regarding conflicts of law and venue for any dispute hereunder shall be a court of competent jurisdiction located in state of ________ , and the parties irrevocably submit to the exclusive jurisdiction of such courts.
RewardCo and Customer are independent contractors. Any notice required or permitted to be delivered pursuant to this Agreement shall be in writing. Customer may not assign or otherwise transfer this Agreement, nor delegate or subcontract any of its rights or obligations hereunder, without RewardCo’s prior written consent provided, that such consent shall not be required for assignment to the purchaser of all or substantially all of the Customer’s assets or equity securities. Neither party shall have any liability to the other or to third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control including, without limitation, acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances or terrorism, or power, communications, satellite or network failures. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under this Agreement will not be deemed to be a waiver or modification by such party of any of its rights under this Agreement. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement. Customer grants RewardCo the right to use Customer’s name in its website, press releases, product brochures and financial reports to indicate that Customer is a RewardCo client. This Agreement may be executed in counterparts (including by means of telecopied signature pages), all of which shall be considered one and the same agreement. The headings used herein are for reference and convenience only and shall not enter into the interpretation hereof. No purchase order or any handwritten or typewritten text on a purchase order which purports to modify or supplement the printed text of this Agreement or any Subscription Order Form shall add to or vary the terms of this Agreement. All such proposed variations or additions (whether submitted by RewardCo or Customer) are objected to and shall have no force or effect. Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract. This Agreement will not create any right or cause of action for any third party beneficiary or any other third party. This Agreement (including the Schedules hereto) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.
IN WITNESS WHEREOF, this Agreement is entered into as of the date first set forth above.
Signed this _______ day of ___________, 20___.
|For RewardCo:||For Customer:|
Software as a Service (SAAS)
Service Level Agreement
This Service Level Agreement (‘SLA’) shall apply to RewardCo’s proprietary Software-as-a Service (‘SAAS’) offerings (collectively, the ‘Services’) during the Term of the Customer’s Subscription for such Services as set forth in the applicable Subscription Order Form. Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Agreement.
a. Formula. The Service will, subject to the exceptions listed below, be available 99% of the time during each calendar month from the time that the Services go-live in Customer’s production environment (referred to herein as the ‘Availability Commitment’). The availability of the Service for a given month will be calculated according to the following formula (referred to herein as the ‘Availability’):
Where: Total minutes in the month = TMM
Total minutes in the month the Service is unavailable = TMU
And: ((TMM-TMU) X 100)/TMM
b. For purposes of this calculation, the Service will be deemed to be unavailable (referred to herein as ‘Unavailable’) only (i) if the Service does not respond to HTTP requests issued by RewardCo’s monitoring software, or (ii) for the duration of a Severity-1 Error as defined in Schedule B to the Agreement. Further, the Service will not be deemed Unavailable for any downtime or outages excluded from such calculation by reason of the exceptions set forth in Section 2 of this SLA. RewardCo’s records and data will be the basis for all SLA calculations and determinations.
c. Maintenance performed at Customer’s request outside of the normally scheduled maintenance will not be considered an outage.
a. The Service will not be considered to be Unavailable for any outage that results from any maintenance performed by RewardCo
b. The RewardCo network extends to, includes and terminates at the data center located router that provides the outside interface of each of RewardCo’s WAN connections to its backbone providers (referred to herein as the ‘RewardCo Network’). The Service will not be considered Unavailable for any outage unavailability of the Service due to (a) Customer’s information content or application programming, acts or omissions of Customer or its agents; (b) delays or failures due to circumstances beyond RewardCo’s reasonable control that could not be avoided by its exercise of due care; or (c) failures of Internet backbone itself and the network by which Customer connects to the Internet backbone or any other network unavailability outside of the RewardCo Network.
3. Remedies. Subject to the exceptions provided for in this SLA, Customer will have the rights set forth below.
a. If the total Availability (as calculated in Section 1 above) for a given month is less than the Availability Commitment, Customer will receive one Service Credit. In addition, for the first 100 minute increment by which the allowable Unavailability is exceeded, Customer will receive one-half (1/2) of a Service Credit. Thereafter, for each additional 100-minute increment by which the allowable outage is exceeded, Customer will receive one (1) additional Service Credit.
b. For purposes of this SLA, a Service Credit will be deemed to be an amount equal to the pro rata fee for one (1) day of the Subscription to the affected Service (herein referred to as ‘Service Credit’). The total Service Credits for a given month will, in no event, exceed an amount equal to fifty percent (50%) of the then-current pro-rata monthly fee for the applicable Subscription to use the affected Service. Service Credits will be applied to extend the Term of the applicable Subscription.
c. Remedies will not accrue (i.e., no Service Credits will be issued and an outage will not be considered unavailability for purposes of this SLA) if Customer is not current in its payment obligations.
d. Upon written request from Customer, RewardCo shall promptly provide a report specifying the level of Unavailability and Service Credits due (if any) for the requested month. To receive Service Credits, Customer must submit such request within 90 days after the end of the month in which the Service was Unavailable.
|For RewardCo:||For Customer:|
Software as a Service (SAAS)
Customer Support Guide
SUPPORT FOR REWARDCO SAAS OFFERINGS
This Support Guide sets forth the terms, conditions, and procedures under which maintenance and support (‘Support’) is offered for RewardCo’s proprietary Software-as-a-Service (‘SAAS’) offerings (collectively, the ‘Services’) during the Term of the Customer’s Subscription for such Services as set forth in the applicable Subscription Order Form. Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Agreement.
Scope. Support will consist of: (i) telephone support; (ii) correction of errors to keep the Services in conformance with the user Documentation included in the Services; and (iii) updated versions of the Services provided by RewardCo to its general customer base of subscribers at no additional charge.
Representative. The Representative designated in the Subscription Order Form will be RewardCo’s contact for communicating with RewardCo concerning Support, or making any other request or providing any notice. Customer may change the Representative upon written notice to RewardCo.
2. CUSTOMER SUPPORT
Technical Support. Customer will have access to RewardCo’s technical support personnel (‘Technical Support’) as follows:
Hours: Monday – Friday, _____ to __________ (excluding Australian holidays).
Phone: Toll Free: _______________; Direct: ________.
Email: ____________Web Support: ________________
Communications with Technical Support may be via telephone or e-mail. RewardCo provides a single entry point of contact that routes requests/problems to the appropriate Technical Support. In addition to the support obligations listed above, RewardCo shall provide web-based support. support twenty (24) hours a day, seven (7) days a week.
3. SEVERITY LEVELS.
Technical Support shall prioritize problems/requests according to the severity levels set forth below. RewardCo will use commercially reasonable efforts to respond according to the Response Specifications set forth below with respect to the Severity Level assigned to the problem:
Severity 1 – Critical
The Services suffer an error or issue which cannot be reasonably circumvented and which so substantially impairs the performance of the Services or any components of the Services, which are critical to the Customer’s business, as to effectively render them unusable. RewardCo will acknowledge any such reported error or issue within thirty (30) minutes and RewardCo will work twenty-four (24) hours a day, seven (7) days a week to identify the error and provide an applicable workaround or fix.
Severity 2 – Serious
The Services suffer an error or issue, which cannot be reasonably circumvented, and which substantially impairs the use of one or more portions or features of the Services required by Customer to perform necessary functions but does not effectively render the Services unusable as a whole. RewardCo will acknowledge any such reported error or issue within two (2) hours and, if Customer is using the Services, will work continually within normal business hours to identify the error and provide an applicable workaround or fix.
Severity 3 – Moderate
The Services suffer a low impact error or issue (which is not of Severity 1 or Severity 2) which impairs the use of the features of the Services, but the reported error or issue can be reasonably circumvented. RewardCo will acknowledge any such reported error or issue within eight (8) hours and will work within normal business hours to identify the error and provide an applicable workaround or fix.
Severity 4 – Minor
The Services do not incur an error and allow Customer to function normal business operations; however, Customer inquiries about existing Documentation, training, or standard use of the Services. RewardCo will acknowledge any such inquiry within twenty-four (24) hours and will work within normal business hours to address and resolve Customer’s inquiry.
* Response times are measured from the time Customer has spoken with or left a voicemail for a RewardCo Customer support contact specifying the nature of the Customer’s problem.
The severity level of the problems reported by Customer shall be reasonably determined by RewardCo. RewardCo will resolve each reported error or issue with the Services by using commercially reasonable efforts to provide: (i) a patch or fix as necessary; or (ii) a reasonable workaround for the error or issue; or, if either (i) or (ii) are not reasonably practicable, a specific action plan regarding how RewardCo intends to address the reported error or issue and an estimate on how long it may take to correct or workaround the error or issue. Customer agrees to use commercially reasonable efforts to assist and provide information to RewardCo as required to resolve errors or issues with the Services reported by Customer. In the event RewardCo fails to meet its obligations under this Section, RewardCo will provide a root cause analysis including definition, corrections and process improvement plan. If a permanent repair cannot be made, a temporary resolution (bypass and recovery) will be implemented to the extent possible.
5. REWARDCO ISSUES.
Support covers any issue or problem that is the result of a verifiable, replicable error (RewardCo will use all reasonable means to verify and replicate) in the Services (‘Verifiable RewardCo Issue’). An error will be a Verifiable RewardCo Issue if it constitutes a material failure by the Services to function in accordance with the Documentation included in the Services. If Technical Support reasonably determines that Customer’s problem is not caused by RewardCo or its systems, equipment, or software, RewardCo is not obligated to provide support under this Agreement. Nevertheless, RewardCo will, if possible, offer suggestions as to how Customer can remedy the problem. If RewardCo determines that the issue was not the result of a Verifiable RewardCo Issue, RewardCo may offer to provide for out of scope professional services at RewardCo’s then current rates upon its standard terms to address the issue.
6. ADDITIONAL SUPPORT.
Technical Support may also determine that Customer’s request is a request for ‘Additional Support.’ Additional Support is any assistance not covered above. Examples of Additional Support include substantive questions regarding data or results, requests for Services customization, specialized training regarding use of the Services, custom documentation, and consulting. If RewardCo believes that it can appropriately and effectively provide the requested services, it will offer do so at its then-current rates upon its standard terms.
7. CUSTOMER’S RESPONSIBILITIES.
Customer’s designated Representative shall initiate all requests for Support. The Representative must be trained, qualified and authorized to communicate all necessary information, perform diagnostic testing under the direction of the RewardCo service Representative and be available during the performance of any Support if required.
8. SUBMITTING A REQUEST / GETTING AN ANSWER.
At the time of Customer’s initial call or e-mail, please prepare to provide:
1. Representative’s name, company name and Services Customer is using;
2. The type of browser (with release version) and hardware Customer is using;
3. Telephone number and alternate method of contact (i.e. a pager number or email address);
4. A concise description of Customer’s problem or question;
5. The circumstances under which the problem does or does not occur; and
6. Specific error messages, error numbers, log files and program numbers.
For new cases, a RewardCo Customer Support Specialist will use the following process to assist Customer with a new case (problem):
1. Document the supplied information;
2. Document Customer’s questions or issues (symptom and function in which it occurs);
3. Answer Customer’s questions or have Customer run tests to further identify and isolate the problem; and
4. Research the problem and provide resolution according to the aforementioned guidelines.