Software Hosting Agreement
Software Hosting / SaaS Agreement
This Software Hosting Services / SaaS Agreement (“Agreement”), is made as of the Order or Download Date (whichever is earlier) of the service (as defined below), by and between GTB Technologies, Inc. (“GTB”), and the ordering or downloading party (“Customer” or “CUSTOMER” or “You”).
GTB provides, has provided, or will provide services for or on behalf of Customer and /or its affiliates (collectively, the “Services”) pursuant to one or more agreements (either a GTB Master and Services Agreement (“MSSA”) or a GTB Terms and Conditions Agreement (“GTB T&C”)) between GTB and Customer or between GTB and one or more of the affiliates of Customer (collectively, the “Underlying Agreement”). As used in this Agreement, the term “Underlying Agreement” includes, without limitation, either an MSSA or GTB T&C, whether in existence as of the Effective Date of this Agreement or entered into at some future date. In the event of an irresolvable conflict between any of the provisions of this Agreement and the Underlying Agreement, the Underlying Agreement shall control.
“Administrator User” means each Customer employee designated by Customer to serve as technical administrator of the SaaS Services on Customer’s behalf. Each Administrator User must complete training and qualification requirements reasonably required by GTB.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Host” means the computer equipment on which the Software is installed, which is owned and/or operated by GTB or its subcontractors.
“Software” means the object code version of any Software to which Customer is provided access as part of the Service.
“Services” and/or “SaaS Services” refer to the specific GTB’S internet-accessible service identified in a Schedule that provides use of GTB’S Software that is hosted by GTB or its services provider and made available to Customer over a network on a term-use basis.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by GTB without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, GTB at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.
- Customer Responsibilities
- Service Levels
- Technical Support
- Term & Termination
- Disclaimers of Warranties
- Limitation of Damages
- Confidential Information
- Customer’s Responsibilities_Additional
- Limitations of the license
- License Restrictions
- Data Ownership: Loss
- GTB Responsibilities
- Cyber Security Incident
- Force Majeure
- Insurance and Waiver
- U.S. Export Controls
- For Service Users Outside of the United States
- Basis of Bargain
- Governing Laws; Venue
GTB will provide Customer with use of the software set forth in a GTB Order Form (“Order”) and the services set forth in this Agreement (collectively, the “Services”), solely for the purpose of hosting GTB Technologies, Inc.’s software and/or services, when licensed by the Customer. GTB reserves the right, in its sole discretion, to modify any Service from time to time, including its 3rd party hosting provider; provided that Customer may terminate a Service without penalty in the 30 days following notice from GTB of the implementation of any change to a Service that has a material adverse effect on the functionality of that Service if GTB fails to correct the adverse effect in the 30 days following Customer’s written notification to GTB of such effect. GTB, its affiliates, or subcontractors may perform some or all of GTB’s duties and/or obligations hereunder.
2. Customer Responsibilities
Customer is responsible for managing the GTB software and Services, along with establishing and maintaining its Internet connection necessary to access and use the Services. All use of the Services and/or Software must comply with the use policies established by GTB and posted on the GTB website. The GTB solution modules are licensed pursuant to the terms and conditions of this Agreement, including, (i) if Customer is a paid subscriber, then the terms of the GTB Terms and Conditions / GTB End User License and Warranty Terms and Conditions, ( located at URL: https://gttb.com/wp-content/uploads/2016/02/GTB%20Technologies%20T&C.pdf ) (the “Policy”), which shall be controlling or (ii) if Customer is conducting a trial then the Evaluation Terms and Conditions Agreement shall be controlling. GTB reserves the right to amend the Policy from time to time, effective upon posting of the revised Policy at the URL or other notice to Customer. GTB reserves the right to suspend the Services or terminate this Agreement effective upon notice for a violation of the Policy. At GTB’s request, Customer agrees to defend, indemnify and hold harmless GTB from any losses, damages, costs, liabilities, or expenses resulting from any third-party claim or allegation (“Claim”) arising out of or relating to, use of the Services, including any Claim which, if true, would constitute a violation of the Policy.
3. Service Levels
Except as otherwise provided in Section 4 Technical Support below, GTB will use commercially reasonable efforts to make the Services available in accordance with prevailing hosting industry standards, taking into account the Customer’s workstations and the speed of their connection to the GTB’s hardware and/or the hosting provider which GTB has licensed (the “Technical Standards”). GTB will use commercially reasonable efforts under the circumstances to remedy any interruptions, omissions, mistakes, accidents, or errors in the Services (hereinafter “Defects”) and restore the Services substantially in accordance with the Technical Standards. If the Services fail to substantially conform to the Technical Standards over a continuous period of thirty (30) days after written notice to GTB of such nonconformity, Customer may, at its sole and exclusive remedy terminate Services, provided that the Defect is not caused or contributed to, directly or indirectly, by any act or omission of Customer or its customers, affiliates, agents, representatives, invitees or licensees, other than normal use of the Services in accordance with the Policy. Section 3 sets forth GTB’s sole liability and Customer’s sole remedies for any claim relating to the Services, including any failure to meet any guarantee set forth herein. GTB’s records and data shall be the basis for all service level calculations and determinations.
4. Technical Support
GTB’s Support shall be available via email, online chat, and Web interface during the hours of 9:00 a.m. to 8:00 p.m., Eastern Time, Monday through Friday, excluding United States federal holidays. Customer acknowledges and agrees that GTB will provide all server-side installation, customization, setup, and support and that neither Customer nor any third party engaged by Customer shall be permitted to provide such services.
5. Term & Termination
The initial term of this Agreement shall commence on the Effective Date and shall continue for the period specified above as the “Initial Term.” Upon expiration of an Initial Term, this Agreement shall automatically renew for additional terms of one (1) year each (each a “Renewal Term”), at GTB’s option, unless Customer provides GTB with written notice of its intent not to renew no later than sixty (60) days prior to the end of the Initial Term or then-current Renewal Term. Payment for the Renewal Term shall be made by Customer prior to the expiration of the current agreement. GTB shall notify Customer in writing of any change in the fees for this agreement at least 90 days prior to the expiration of the current agreement. In addition, GTB shall have the right to terminate this Agreement immediately, in the event that Customer ceases to do business in the normal course, becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to liquidation or insolvency which is not dismissed within ninety (90) days, or makes an assignment for the benefit of its creditors.
CUSTOMER agrees to the fees for the Services as set forth above. All payments for fees shall be made in the currency specified in the GTB Order form. All fees for the Services shall be paid in advance upon ordering the Service. In the event Customer fails to pay an invoice within 30 days of the invoice date, GTB may issue a notice of default, and may discontinue the Services and/or terminate this Agreement in the event CUSTOMER has not fully paid all invoices within seven (7) days of the default notice. LICENSE TRUE-UP. GTB will have the right to conduct an audit of total user licenses credentialed by CUSTOMER for any Subscription Services during a Subscription Term, and CUSTOMER will cooperate with such audit. If GTB determines that CUSTOMER’s usage of the Subscription Services during the applicable Subscription Term exceeded the total number of licenses purchased by CUSTOMER, GTB may invoice CUSTOMER for the additional licenses used by CUSTOMER, pro-rated for each additional license from the date such license was activated, and CUSTOMER will pay such invoice in accordance with the payment terms in the Agreement.
Customer agrees to pay GTB its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights under this Agreement.
7. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 3, “SERVICE LEVELS” ABOVE, GTB (a) MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE SERVICES IT IS PROVIDING, AND (b) DISCLAIMS ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
GTB exercises no control over and accepts no responsibility for the content of the information passing through the Services. GTB specifically denies any responsibility for the accuracy or quality of information obtained through the Services. Use of any information obtained via the Services is at Customer’s own risk.
8. Limitation of Damages
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, IN NO EVENT SHALL EITHER PARTY OR ANY OF GTB’S SUPPLIERS OR LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST REVENUE, OR LOST DATA), NOR SHALL GTB’S SUPPLIERS OR LICENSORS BE LIABLE FOR DIRECT DAMAGES TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT SHALL GTB’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHERWISE) EXCEED THE LESSER OF $100,000 OR THE AMOUNTS PAID TO GTB FOR THE SERVICES GIVING RISE TO A CLAIM IN THE TWELVE MONTHS PRECEDING THE DATE OF SUCH CLAIM.
Customer agrees and acknowledges that GTB’s hosting provider may be AWS, Microsoft Azure, or another 3rd party provider (a public cloud) and that, the Customer is in a better position to foresee and evaluate any potential damage or loss it may suffer in connection with the Services and that the fees payable under this Agreement have been negotiated and calculated on the basis that GTB shall exclude liability as provided in this Section.
9. Confidential Information
Commencing on the date Customer starts the Services and continuing for a period of three (3) years from the termination, each party shall protect as confidential, and shall not disclose to any third party without the disclosing party’s written consent, any Confidential Information received from the disclosing party or otherwise discovered by the receiving party during the term of this Agreement, including, but not limited to, the pricing and terms of this Agreement, and any information relating to the disclosing party’s technology, business affairs, marketing or sales plans, and any non-public information regarding the performance of the Services (collectively the “Confidential Information”). The parties shall use Confidential Information only for the purpose of this Agreement and shall only disclose Confidential Information to affiliates, employees, subcontractors, or advisors under a similar obligation of confidentiality. The foregoing restrictions on the use and disclosure of Confidential Information do not apply to information that: (i) is in the possession of the receiving party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (ii) is, or becomes publicly known, through no wrongful act or omission of the receiving party; (iii) is received without restriction from a third party free to disclose it without obligation to the disclosing party; (iv) is developed independently by the receiving party without reference to the Confidential Information, or (v) is required to be disclosed by law, regulation, or court or governmental order, however, the party subject to such law, regulation or court or governmental order shall use reasonable efforts to minimize such disclosure and shall notify the other party contemporaneously of such disclosure.
10. Customer’s Responsibilities_Additional
- Customer shall provide commercially reasonable information and assistance to GTB to enable GTB to deliver the SaaS Services. Customer acknowledges that GTB ’s ability to deliver the SaaS Services in the manner provided in this exhibit may depend upon the accuracy and timeliness of such information and assistance.
- Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that GTB exercises no control over the content of the information transmitted by Customer through the SaaS Services.
- Customer shall not upload, post, reproduce or distribute any information, Software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
- Customer shall be solely responsible for the acts and omissions of its’ Administrator Users and its’ End Users. GTB shall not be liable for any loss of data or functionality caused directly or indirectly by the Administrator Users.
- Customer warrants that it has implemented and shall maintain commercially reasonable cybersecurity measures consistent with prevailing data security standards in the Customer’s industry.
- Subject to the terms and conditions of this SaaS Agreement, Customer shall grant GTB a limited, non-exclusive, and non-transferable license, to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the SaaS Services to Customer
- Notify GTB immediately of any unauthorized use of any password or user id or any other known or suspected breach of security,
- Report to GTB immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer, and
- Not provide false identity information to gain access to or use the SaaS Services.
Customer is solely responsible for collecting, inputting and updating all Customer Content stored on the Host, and for ensuring that the Customer Content does not:
- Include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark, or other intellectual property rights of any third party, or
- Contain anything that is obscene, defamatory, harassing, offensive or malicious.
11. Limitations of the License
- The Hosted Services may only be used by the officers, employees, agents, and subcontractors of the Customer;
- The Hosted Services may only be used by the named users identified
- The Hosted Services must not be used at any point in time by more than the number of concurrent users specified in the section.
- Subject to the limited licenses granted herein, GTB shall own all right, title, and interest in and to the Software, services, Documentation, and other deliverables provided under this SaaS Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. Customer agrees to assign all rights, titles, and interests it may have in the foregoing to GTB.
12. License Restrictions
Customer shall not, and shall not permit anyone to:
- Copy, republish or redistribute any content or material of the SaaS Services or Software;
- Make the SaaS Services available to any person other than authorized users;
- Use or access the SaaS Services to provide service bureau, time-sharing or other computer hosting services to third parties;
- Remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Software used to provide the SaaS Services or in the Documentation;
- Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law;
- Access the SaaS Services or use the Documentation in order to build a similar product or competitive product.
- Use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or platform or impairment of the availability or accessibility of the Hosted Services.
- Sub-license its right to access and use the Hosted Services;
- Conduct or request that any other person conduct any load testing or penetration testing on the platform or Hosted Services without the prior written consent of the Provider.
- Use the Hosted Services in any way that is unlawful, illegal, fraudulent or harmful.
13. Data Ownership: Loss
All data created or transmitted by Customer and stored on GTB’s servers as part of the Services (“Customer Data”) shall at all times be owned by Customer. Except as instructed by Customer directly or through instructions provided to the servers through Customer’s use of GTB’s Software, GTB shall treat Customer Data as Confidential Information. Upon termination or cancellation of this Agreement for any reason, GTB shall return all Customer Data to Customer in the file format used by the GTB’s Software. As a convenience for Customer, GTB shall perform a regular backup of all Customer Data, but GTB shall in no event be liable to Customer or any third party for loss, destruction or corruption of Customer Data. Customer agrees and acknowledges that it is in a better position to foresee and evaluate any potential damage or loss it may suffer in connection with the loss of Customer Data and that the fees payable under this Agreement have been negotiated and calculated on the basis that GTB shall exclude liability as provided in this Section.
14. GTB Responsibilities
Provision of Purchased Services. GTB will (a) make the Services and Content available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation, (b) provide applicable GTB standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which GTB shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond GTB’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving GTB employees), Internet service provider failure or delay, Non-GTB Application, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to GTB’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s and Users’ use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.
All access to the Services shall be controlled by user names and passwords issued by GTB to Customer as well as created by Customer. Each user name and password will be unique to each staff member that Customer designates is authorized to access the Services. Customer is solely responsible for the security of the user names and passwords issued to Customer’s staff members. Any access to the Services using such user names and passwords will be deemed access by Customer, except where access is the result of unauthorized disclosure of user names and passwords by the negligent or willful act of GTB. Upon request by Customer, GTB will install a digital secured server certificate provided by Customer.
16. Cyber Security Incident
The Agreement is limited to the products specifically named in the Order. Customer represents and warrants that it will comply with all relevant security industry standards and practices. In the event of a Cyber Security Incident (defined below), Customer will reasonably cooperate with GTB, including granting access to Customer’s systems as necessary, to reduce impact and determine the cause and scope of the incident. “Cyber Security Incident” means a violation or imminent threat of violation of cybersecurity policies, acceptable use policies, or standard cybersecurity practices which results in misuse, damage, breaches of any kind, denial of service, compromise of integrity, or loss of confidentiality of a network, computer, application, or data. Customer
acknowledges and understands that GTB’s hosting services are provided via a third
party public cloud service and understand the inherent risks associated with
such service. GTB and its Affiliates, directors, officers, employees, and agents will not be liable or responsible for Cyber Security Incidents, third-party hacking attempts or attacks, viruses, malware and similar software programs, and denial of service attacks.
17. Force Majeure
GTB shall not be deemed to be in default of any provision of this Agreement or be liable for any delay or failure in performance due to Force Majeure, which shall include without limitation acts of God, earthquake, weather conditions, labor disputes, changes in law, regulation or government policy, riots, war, fire, epidemics, viral outbreaks, acts or omissions of vendors or suppliers, equipment failures, transportation difficulties, malicious or criminal acts of third parties, or other occurrences which are beyond GTB’s reasonable control.
18. Insurance and Waiver of Subrogation
Customer agrees to obtain insurance coverage to cover 100% (one hundred percent) of any losses incurred due to Customer’s reliance on GTB’s software or services. Customer shall look solely to your insurer for recovery of any loss and Customer hereby waives any and all claims for such loss against GTB and that Customer’s insurance policy will contain a clause providing that such waiver would not invalidate the coverage.
19. U.S. Export Controls
You agree to abide by the U.S. and other applicable export control laws and not to transfer from the U.S., by electronic transmission or otherwise, any Content or software subject to restrictions under such laws to a destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization.
20. For Service Users Outside of the United States
THE SERVICE IS PROVIDED BY GTB TECHNOLOGIES, INC. THE PERSONAL INFORMATION WHICH YOU GIVE GTB WILL BE USED TO ESTABLISH YOUR ACCOUNT (WHETHER A TRIAL ACCOUNT OR OTHERWISE) AND WILL BE TRANSFERRED TO AND MAINTAINED IN GTB’S RECORDS IN THE UNITED STATES. IF YOU DO NOT CONSENT TO THIS TRANSFER, DO NOT ACCEPT THE TERMS AND CONDITIONS FOR THE GTB HOSTING SERVICES.
21. Basis of Bargain
EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT (INCLUDING THE SOLUTION TERMS AND CONDITIONS) ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
The Parties agree not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage, or in any way criticize the personal or business reputation, practices, or conduct of the other Party, its employees, directors, and officers. The Parties acknowledge and agree that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors, employees (past and present), and clients. The Parties understand and agree that this Paragraph is a material provision of this Agreement and that any breach of this Paragraph shall be a material breach of this Agreement, and that each Party would be irreparably harmed by a violation of this provision.
23. Governing Laws; Venue
This Agreement is made under and will be governed by and construed in accordance with the laws of the State of Florida except for that body of law controlling conflicts of law and excluding the Convention on Contracts for the International Sale of Goods. The parties agree that the Uniform Computer Information Transactions Act, or any version thereof, adopted by any state located in the United States, in any form (the “UCITA”), will not apply to this Agreement. To the extent that the UCITA is applicable, the parties agree to opt-out of the applicability of the UCITA pursuant to the opt-out provisions contained therein. In the event of any controversy, claim, or dispute arising under or relating to this Agreement or the support and subscription services, including the existence, validity, interpretation, performance, termination, or breach thereof, the parties to this Agreement hereby expressly and irrevocably consent to the personal jurisdiction and venue of the federal courts sitting within the Southern District of Florida (Southern Division), unless no federal subject matter jurisdiction exists, in which case the parties consent to jurisdiction and venue in the Superior Court of Palm Beach County, Florida. The parties expressly waive all defenses of lack of personal jurisdiction and forum nonconveniens with respect to such federal and state courts.
GTB reserves the right to use the Customers name in its marketing and promotional materials, otherwise, neither party may use the other party’s name, trademarks, trade names, or other proprietary identifying symbols, or issue any press release or public statement relating to this Agreement without the prior written permission of the other party. No failure on the part of either party to exercise, and no delay in exercising, any right or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy granted herein. Paragraph and section headings contained in this agreement are for reference purposes only and shall not affect the meaning or interpretation of this agreement. Neither party may assign this Agreement or any of its rights hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed; provided that GTB may assign this Agreement or any of its rights hereunder to an affiliate or successor without Customer’s written consent. This Agreement sets forth the entire and exclusive agreement between the parties, superseding all prior or contemporaneous representations, proposals, quotes, agreements, or understandings concerning the subject matter addressed herein. GTB reserves the right, at its sole discretion and without notice to Customer, to change, modify, add or remove portions of this Agreement at any time, with the most current version found at https://gttb.com/gtb-hosting-terms-and-conditions/ or Customer can email a request to receive the most recent version to info @ gttb.com.
Revised August 23, 2022