BLACKOUT Software as a Service (SaaS) Agreement
PLEASE READ THIS AGREEMENT BEFORE USING MILYLI’S SERVICES. BY ACCESSING OR USING MILYLI’S AUTOMATED REDACTION AND MARKUP SOFTWARE TOOLS, YOU (the “Customer”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES. IF THE PARTIES HAVE A FULLY EXECUTED AGREEMENT THAT EXPRESSLY GOVERNS ORDERS FOR MILYLI’S SOFTWARE AS A SERVICE AGREEMENT, SUCH AGREEMENT SHALL SUPERSEDE THIS AGREEMENT.
This Software as a Service (SaaS) Agreement (“Agreement”) is entered into by and between Customer and Milyli, Inc. (“Milyli”), a Delaware corporation with a principal place of business at 415 N. Sangamon St., Chicago, Illinois 60642.
WHEREAS, Customer desires to obtain access to certain services provided by Milyli, and Milyli wishes to provides such services to Customer, each on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 “Authorized User(s)” refers to any employees and/or independent contractors designated by Customer to use the Blackout Platform on behalf of Customer.
1.2 “Beta Subscription Services” refers to the specific beta-version software as a service (SaaS) provided by Milyli for the access to and use of Milyli’s Blackout Platform and is made available to Customer over a network on a limited beta term-use basis.
1.2 “Beta Subscription Term” shall mean that period specified below during which Customer will have online access to and use of the Blackout Platform through Milyli’s Beta Subscription Services.
1.4 “Blackout Platform” refers to the specific beta-version automated redaction and markup software tool that is hosted by Milyli or its services provider.
1.5 “Commercial Subscription Services” refers to the specific Milyli software as a service (SaaS) that is or may be based on, derived from, and/or an updated version of the Beta Subscription Services and that may be released by Milyli at any time in the future, at Milyli’s sole discretion, for commercial sale by Milyli.
1.6 “Confidential Information” means all non-public business, technical, or financial information relating to a party’s business.
1.7 “Customer Data” means all data, information, content, and materials provided by Customer to Milyli for use in connection with the Subscription Services, and/or recorded or stored by Customer on the Blackout Platform through the Subscription Services, including, without limitation, electronic documents in native PDF, Word, Excel and other formats, customer applications, data files, graphics and images.
1.8 “Documentation” means the user guides, online help, release notes, training materials and other documentation provided or made available by Milyli to Customer regarding the use or operation of the Subscription Services.
1.9 “Software” means the object code version of any software to which Customer is provided access as part of the Beta Subscription Services, including the Blackout Platform, and any updates thereto or new versions thereof.
2.1 Purpose. This Agreement sets forth the terms and conditions under which Milyli agrees to provide Beta Subscription Services for the Blackout Platform to Customer and its Authorized Users. Customer acknowledges that this Agreement is a services agreement and Milyli will not be delivering copies of the underlying software to Customer as part of the Agreement.
2.2 Beta Subscription Services. During the Beta Subscription Term, Customer will receive a fee-free, non-exclusive, non-assignable worldwide right to access and use the Beta Subscription Services solely for Customer’s internal business operations and subject to the terms and conditions of this Agreement.
2.3 License from Customer. Customer shall grant to Milyli a limited, non-exclusive and non-transferable license to copy, store, configure, perform, display and transmit Customer Data solely as necessary to provide the Beta Subscription Services to Customer.
2.4 Authorized Users. During the Beta Subscription Term, Customer may allow Customer’s employees to use the Blackout Platform on behalf of Customer as Authorized Users. As a condition to access and use the Blackout Platform, each Authorized User shall agree to abide by the terms of this Agreement, and Customer shall ensure such compliance by the Authorized User.
2.5 Changes to Blackout Platform. Milyli may, in its sole discretion, make any changes to the Blackout Platform and underlying Software that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Milyli’s products or services to its customers, (b) the competitive strength of, or market for, Milyli’s products or services, (c) cost efficiency or performance of the Blackout Platform, or (ii) to comply with applicable law. Milyli retains the right to take the Blackout Platform off-line to perform any planned or unplanned maintenance of its servers or make any changes or updates to the Blackout Platform.
3. CUSTOMER RESPONSIBILITIES
3.1 Account Access. Customer shall 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 Milyli account, passwords (including but not limited to administrative and user passwords) and files. Milyli shall not be liable for any loss of data or functionality caused directly or indirectly by any acts or omissions of Customer or its Authorized Users, or any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
3.2 Unauthorized Use; False Information. Customer shall: (a) immediately notify Milyli of any unauthorized use of any password or user ID or any other known or suspected breach of security, (b) immediately report to Milyli and use reasonable efforts to stop any unauthorized use of the Beta Subscription Services that is known or suspected by Customer or any of its Authorized Users, and (c) not provide false identity information to gain access to or use the Beta Subscription Services.
3.3 Customer Systems. Customer shall be solely responsible for obtaining and maintaining the functionality and security of any equipment and ancillary services needed to connect to, access, or otherwise use the Beta Subscription Services, including modems, hardware, servers, software, operating systems, networking, and web servers.
3.4 Customer Data. Customer is solely responsible for collecting, inputting, updating, downloading, and saving all of its Customer Data stored on the Blackout Platform. Customer acknowledges that, during the Beta Subscription Term, Milyli will store Customer Data for a period of two (2) days solely for functionality purposes and use by Customer, and that Milyli will permanently delete Customer Data stored on the Blackout Platform two (2) days after such Customer Data was first uploaded by Customer. Customer further acknowledges that any such deleted Customer Data will not be accessible or retrievable by Milyli, Customer, or any third party. Milyli’s servers for the Blackout Platform and Beta Subscription Services are located in the United States.
3.5 Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the Beta Subscription Services, including, without limitation, those relating to export and import, international communications, and the transmission of technical or personal data. Customer acknowledges that Milyli exercises no control over the content of the information transmitted by Customer or the Authorized Users through the Beta Subscription Services.
4. IP OWNERSHIP AND SOFTWARE RESTRICTIONS
4.1 Ownership of Intellectual Property. Milyli is the sole owner of all right, title and interest in and to the Software, Blackout Platform, Beta Subscription Services, Documentation, and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback from Customer or any third-party related thereto and intellectual property rights therein. Unless expressly stated herein, Milyli does not transfer any rights to or in any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Beta Subscription Service, Blackout Platform, or Software, and all right, title, and interest thereto remains with Milyli.
4.2 Suggestions and Feedback. Milyli may from time to time request suggestions, comments or other feedback from Customer regarding its performance of Subscription Services. Milyli shall be free to disclose and use such suggestions and feedback as it sees fit, without obligation to Customer.
4.3 Software Restrictions. Customer shall not, nor permit or encourage any third party to, directly or indirectly (i) copy or republish the Blackout Platform or Software; (ii) make the Beta Subscription Services, Blackout Platform, or Software available to any person other than Authorized Users; (iii) 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 the Blackout Platform or Beta Subscription Services, or any Milyli Software, Documentation or data related to the Blackout Platform or Beta Subscription Services; (iv) modify, translate, or create derivative works based on the Blackout Platform or any Milyli Software; (v) modify, remove or obstruct any copyright, trademark or other proprietary notices or labels contained in the Software or Blackout Platform used to provide the Beta Subscription Services or in the Documentation; or (vi) use any Software or the Blackout Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software, the Blackout Platform, or the Beta Subscription Services.
5.1 Confidential Information. Each party understands that it has been or may be exposed to or acquire Confidential Information of the other party. Confidential Information of Milyli includes, but is not limited to, non-public information regarding the Software, Blackout Platform, and Beta Subscription Services, such as source code, object code or underlying structure, ideas, know-how, algorithms or documentation, as well as the terms and conditions of this Agreement, including all pricing and related metrics. Confidential Information of Customer includes non-public Customer Data provided by Customer to Milyli to enable the provision of access to or use of the Beta Subscription Services, as well as all Customer Data recorded and stored on the Blackout Platform by Customer. Confidential Information excludes information that (i) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (ii) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (iii) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party.
5.2 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.
5.3 Compelled Disclosure. Notwithstanding Section 5.2, 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 that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.
6. TERM, SUSPENSION, AND TERMINATION
6.1 Beta Subscription Term. The Beta Subscription Term shall begin on the date the Beta Subscription Services are first made publicly available by Milyli, and shall continue until the the initial release by Milyli of the Commercial Subscription Services. Customer acknowledges that the Commercial Subscription Services may be released by Milyli at any time in the future, at Milyli’s sole discretion.
6.2 Suspension for Ongoing Harm. Milyli reserves the right to suspend delivery of the Beta Subscription Services if Milyli reasonably concludes that Customer’s or any of its Authorized User’s use of the Beta Subscription Services is causing immediate and ongoing harm to Milyli, its systems, or others. In the extraordinary case that Milyli must suspend delivery of the Beta Subscription Services, Milyli shall notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. Milyli shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the Beta Subscription Services in accordance with this Section. Nothing in this Section shall limit Milyli’s rights under Section 6.3 below.
6.3 Termination. In addition to any other remedies it may have, either party may terminate this Agreement at any time, for any or no reason, upon written notice to the other party .
6.4 Effect of Termination. Upon termination of the Agreement for any reason, Customer shall immediately cease all use of and access to the Beta Subscription Services. Further, upon termination of the Agreement, Milyli may destroy or otherwise dispose of any of the Customer Data in its possession.
7. FEES & EXPENSES
7.1 Fees. Access to and use of the Beta Subscription Services are provided free of during the Beta Subscription Term. Milyli reserves the right to start charging or revise fee amounts at any time, at its sole discretion, under this Agreement at or after the Commercial Subscription Services are made available for purchase.
7.2 Subpoena Expenses. If Milyli has to provide information in response to a subpoena related to Customer’s account, then Milyli may charge Customer for Milyli’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.
8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MILYLI DOES NOT WARRANT THAT ACCESS TO THE BLACKOUT PLATFORM, SOFTWARE OR BETA SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES MILYLI MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF BETA SUBSCRIPTION SERVICES. FURTHER, MILYLI MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY SERVICE PROVIDERS RELATING TO OR SUPPORTING THE BLACKOUT PLATFORM, INCLUDING HOSTING AND MAINTENANCE SERVICES, AND ANY CLAIM OF CUSTOMER ARISING FROM OR RELATING TO SUCH SERVICES SHALL, AS BETWEEN MILYLI AND SUCH SERVICE PROVIDER, BE SOLELY AGAINST SUCH SERVICE PROVIDER. THE BLACKOUT PLATFORM, SOFTWARE AND BETA SUBSCRIPTION SERVICES ARE PROVIDED “AS IS,” AND MILYLI 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.
9.1 Indemnification by Milyli. Milyli will defend Customer against any claim, suit, demand, or action made or brought against Customer by a third party alleging that the Beta Subscription Services, or Customer’s use or access thereof in accordance with this Agreement, infringes any intellectual property rights of such third party, and will indemnify and hold harmless Customer from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) finally awarded against Customer in connection with or in settlement of any such claim, suit, demand, or action. The foregoing obligations do not apply with respect to portions or components of the Blackout Platform or Beta Subscription Services (i) not supplied by Milyli, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery, or granting of access, by Milyli, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Beta Subscription Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Blackout Platform is held by a court of competent jurisdiction to be or is believed by Milyli to be infringing, Milyli may, at its option and expense (a) replace or modify the Blackout Platform to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Blackout Platform, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Beta Subscription Services, if any. This Section states Customer’s sole and exclusive remedies for claims of infringement.
9.2 Indemnification by Customer. If a third party makes a claim against Milyli that the Customer Data infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend Milyli and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.
9.3 Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.
10. LIMITATIONS 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 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. GENERAL PROVISIONS
11.1 No Assignment. Neither party may assign this Agreement to another person or entity without the written consent of the other party.
11.2 Governing Law. This Agreement shall be governed by the laws of the State of Illinois, excluding its conflict of law principles. The parties agree that the jurisdiction and venue of any action with respect to this Agreement shall be in Cook County, Chicago, Illinois. The parties hereby consent to personal jurisdiction and proper venue in the federal and state courts located in the State of Illinois.
11.3 Notices. All notices required or permitted to be given under this Agreement shall be in writing and will be deemed effectively given upon personal delivery, email delivery with return acknowledgement of receipt, delivery by confirmed fax to the party to be notified, two days after deposit with a recognized overnight courier service, or three business days after deposit with the United States Post Office, by registered or certified mail, postage prepaid. Any such notices by Customer to Milyli shall be delivered to the following address: Attn: Legal Department Milyli, Inc., 415 N. Sangamon St., Chicago, Illinois 60642. Any such notices by Milyli to Customer may be delivered to any physical or email address provided by Customer to Milyli.
11.4 Entire Agreement. This Agreement, any and all attachments or exhibits thereto, constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications. It shall not be modified except by a written agreement dated subsequent to the date of this Agreement and signed on behalf of both parties by their respective duly authorized representatives.
11.5 Survival. Except as otherwise provided herein, Sections 4, 5, 6.2-6.3, 7, and 9-11 shall survive the termination or expiration of this Agreement for any reason.
11.6 Force Majeure. A party will not be deemed to have materially breached this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of an act of God, fire, natural disaster, accident, act of government, shortage of equipment, materials or supplies beyond the reasonable control of such party, or any other cause beyond the reasonable control of that party provided that the party whose performance is delayed or prevented promptly notifies the other party of the nature and duration of the force majeure event.
11.7 Waiver. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.