Definitions and Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these Conditions.

“Middleware” means Middleware Labs Inc, a Delaware corporation with its principal place of business at 415 Mission St, San Francisco, CA 94105.

“Authorized Users” means those employees, agents and independent contractors of the Customer or of the Customer’s suppliers or business partners who are authorized by the Customer to use the Services and the Documentation.

“Business Day” means a day other than a Saturday, Sunday or public holiday in the State of California when banks in the State of California are open for business.

“Conditions” means these terms and conditions set out in Clause 1 (Definitions and Interpretation) to Clause 20 (Governing Law and Jurisdiction) (inclusive).

“Confidential Information” means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 10.5 or Clause 10.6.

“Customer” means the entity referred to in the Order Form that purchases a subscription to access the Services and the Software from Middleware.

“Customer Data” means the data processed by Middleware on the Customer’s behalf to facilitate the Customer’s use of the Services.

“Customer Personal Data” means any Customer Data that constitutes personal data, personal information, or personally identifiable information as defined under applicable Data Protection Laws.

“Data Protection Laws” means any data protection or privacy law applicable to Customer Personal Data.

“Documentation” means any documentation made available to the Customer by Middleware which sets out a description of the Services and/or the Software and the user instructions for the Services and/or the Software.

“Effective Date” means the Effective Date as set forth in the Order Form.

“Initial Subscription Term” means 12 months.

“Order Form” means the order form signed by the Customer and Middleware for the provision of the Services.
“Renewal Period” means the period described in Clause 13.1.

“SaaS Agreement” means that certain agreement by and between the Customer and for the supply of the Services and the Software, which is comprised of the Order Form, these Conditions, the SLA, and any applicable Statements of Work.

“Services” means the subscription services provided by Middleware to the Customer under this SaaS Agreement.

“SLA” means the service level agreement for providing support in relation to the Services and the Software together with uptime commitments in relation to the availability of the Services.

“Software” means any software applications provided by Middleware as part of the Services including, without limitation, any plugins or code.

“Start Date” means the date referred to as the Start Date on the Order Form.

“Subscription Fees” means the subscription fees payable by the Customer to Middleware for the User Subscriptions as referred to in the Order Form.

“Subscription Term” has the meaning given in Clause 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

“User Subscriptions” means the user subscriptions purchased by the Customer pursuant to Clause 8.1 which entitle Authorized Users to access and use the Services and the Documentation in accordance with the SaaS Agreement.

“Virus” means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.3 A reference to a statute or statutory provision is a reference to it as it is in force as of the Effective Date.

1.4 A reference to a statute or statutory provision shall include all subordinate legislation made as of the Effective Date under that statute or statutory provision.

User Subscriptions

2.1 Subject to the Customer purchasing the User Subscriptions in accordance with the SaaS Agreement, Middleware grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Authorized Users to use the Services, the Software and the Documentation during the Subscription Term solely for the Customer’s business operations.

2.2 In relation to the Authorized Users, the Customer agrees that:

(a) the maximum number of Authorized Users that it authorizes to access and use the Services, the Software and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;

(b) the Customer will not allow any User Subscription to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Services, the Software and/or the Documentation;

(c) each Authorized User shall keep a secure password for his or her use of the Services and the Documentation and each Authorized User shall keep his or her password confidential;

(d) the Customer shall permit Middleware or Middleware’s designated auditor to audit the Services in order to establish the name and password of each Authorized User and Middleware’s data processing facilities to audit compliance with the SaaS Agreement;

(e) if any of the audits referred to in Clause 2.2(d) reveal that any password has been provided to any individual who is not an Authorized User, then without prejudice to Middleware’s other rights, the Customer shall promptly disable such passwords; and

(f) if any of the audits referred to in Clause 2.2(d) reveal that the Customer has underpaid Subscription Fees to Middleware, then without prejudice to Middleware’s other rights, the Customer shall pay to Middleware an amount equal to such underpayment as calculated in accordance with Middleware’s then-current price lists within 10 Business Days of the date of the relevant audit.

2.3 The Customer shall not access, store, distribute or transmit any Virus, or any material during the course of its use of the Services that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(c) depicts sexually explicit images or promotes unlawful violence;

(d) is discriminatory based on race, gender, color, religious belief, sexual orientation, age, or disability; or

(e) is otherwise illegal or causes damage or injury to any person or property.

Middleware reserves the right, without liability or prejudice to its other rights with respect to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

2.4 The Customer shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the SaaS Agreement:

(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation in any form or media or by any means; or

(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;

(b) access all or any part of the Services, the Software and Documentation in order to build a product or service which competes with the Services, the Software and/or the Documentation;

(c) except to the extent expressly permitted under the SaaS Agreement, use the Services, the Software and/or Documentation to provide services to third parties;

(d) subject to Clause 19, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, the Software and/or the Documentation available to any third party except the Authorized Users;

(e) attempt to obtain, or assist third parties in obtaining, access to the Services, the Software and/or the Documentation, other than as provided under this Clause 2;

(f) introduce or permit the introduction of, any Virus into Middleware’s network and/or information systems; or

(g) otherwise access or use the Services, the Software, or the Documentation beyond the scope of the authorization granted under the SaaS Agreement.

2.5 The Customer shall use its best efforts to prevent any unauthorized access to, or use of, the Services, the Software and/or the Documentation and, in the event of any such unauthorized access or use, immediately notify Middleware.

2.6 The rights provided under this Clause 2 are granted to the Customer only, and shall not be considered granted to any affiliate, subsidiary or holding company of the Customer.

Additional User Subscriptions

3.1 Subject to Clause 3.2 and Clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions and Middleware shall grant access to the Services, the Software and the Documentation to such additional Authorized Users in accordance with the provisions of the SaaS Agreement.

3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Middleware in writing. Middleware shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request. If Middleware approves the request, Middleware shall activate the additional User Subscriptions and invoice the Customer for the Subscription Fees payable in respect of the additional User Subscriptions. The Customer shall pay such invoice within 30 days of receipt.

3.3 If such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be prorated from the date of activation by Middleware for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

Services

4.1 Middleware shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the provisions of the SaaS Agreement.

4.2 Middleware shall use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week, except for any unavailability due, in whole or in part, to any (a) act or omission by Customer or any Authorized User, (b) Customer’s or its Authorized User’s internet connectivity, (c) delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under the SaaS Agreement, (d) maintenance carried out by Middleware or its representatives, provided that Middleware has used reasonable efforts to give the Customer at least four hours’ notice in advance of such maintenance, or (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Middleware pursuant to the SaaS Agreement.

Customer Data

5.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not Customer Personal Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

5.2 In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Middleware shall be for Middleware to use commercially reasonable efforts to restore the lost or damaged Customer Data. Middleware shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party. If any loss or damage to Customer Data is caused by the Customer or any of its employees, agents or contractors then Middleware may charge the Customer for the reasonable costs of restoring the Customer Data, such costs to be agreed between Middleware and the Customer in advance.

5.3 Both parties will comply with all applicable Data Protection Laws.

5.4 The parties acknowledge that Middleware processes Customer Personal Data in order to provide the Services set forth in the SaaS Agreement.

5.5 Without prejudice to the generality of Clause 5.3, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Middleware for the duration and purposes of the SaaS Agreement so that Middleware may lawfully use, process and transfer the personal data in accordance with the SaaS Agreement on the Customer’s behalf.

5.6 Without prejudice to the generality of Clause 5.3, Middleware shall, in relation to any Customer Personal Data processed in connection with the performance by Middleware of its obligations under the SaaS Agreement:

(a) process Customer Personal Data only to the extent necessary for the purposes specified in the SaaS Agreement and in accordance with the Customer’s documented instructions, unless otherwise required to do so by applicable law, in which case Middleware shall notify the customer of the applicable legal requirement, unless the applicable law prohibits Middleware from providing the information on important grounds of public interest;

(b) ensure any individuals processing Customer Personal Data are bound by confidentiality requirements;

(c) where required to do so by applicable Data Protection Laws, assist the Customer, at the Customer’s cost, in ensuring compliance with its obligations under Data Protection Laws with respect to security of processing, breach notifications, data protection impact assessments, and consultations with supervisory authorities or regulators, taking into account the nature of the processing and the information available to Middleware;

(d) notify the Customer without undue delay upon becoming aware of a data breach affecting Customer Personal Data;

(e) at the choice of the Customer, delete or return any Customer Personal Data to the Customer on expiration or termination of the SaaS Agreement unless applicable law requires Middleware to continue storing the Customer Personal Data;

(f) immediately inform the Customer if, in the opinion of Middleware, an instruction from the Customer infringes any
applicable Data Protection Law;

(g) where required to do so by applicable Data Protection Laws, not engage any subprocessors to process Customer personal data without the Customer’s prior authorization; and

(h) where required to do so by applicable Data Protection Laws, make available to the Customer, at the Customers expense, information necessary to demonstrate compliance with applicable Data Protection laws and allow for and contribute to audits conducted by the Customer no more than annually.

Middleware’s Obligations

6.1 Middleware undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care and that the Software will function substantially in accordance with the Documentation.

6.2 Clause 6.1 shall not apply to the extent that any non-conformance is caused by use of the Services or the Software contrary to Middleware’s instructions, or modification or alteration of the Services or the Software by any party other than Middleware or Middleware’s duly authorized contractors or agents. If the Services or the Software do not comply with the obligation set forth in Clause 6.1, Middleware will, at its expense, use commercially reasonable efforts to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the obligation set forth in Clause

6.1. Notwithstanding the foregoing, Middleware:

(a) does not warrant that the Customer’s use of the Services or of the Software will be uninterrupted or error-free, or that the Services, the Software, the Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and

(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services, the Software and the Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.3 Middleware warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under the SaaS Agreement.

Customer’s Obligations

7.1 The Customer shall:

(a) provide Middleware with:

(i) all necessary cooperation in relation to the SaaS Agreement;

(ii) all necessary access to such information as may be required by Middleware; and

(iii) in order to provide the Services, including but not limited to Customer Data, security access information and configuration services and any Software;

(b) without affecting its other obligations under the SaaS Agreement, comply with all applicable laws and regulations with respect to its activities under the SaaS Agreement;

(c) carry out all other Customer responsibilities set out in the SaaS Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Middleware may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) ensure that the Authorized Users use the Services, the Software and the Documentation in accordance with the SaaS Agreement and shall be responsible for any Authorized User’s breach of the SaaS Agreement;

(e) obtain and shall maintain all necessary licenses, consents, and permissions necessary for Middleware, its contractors and agents to perform their obligations under the SaaS Agreement, including, without limitation, the Services;

(f) ensure that its network and systems comply with the relevant specifications provided by Middleware from time to time; and

(g) be, to the extent permitted by law and except as otherwise expressly provided in the SaaS Agreement, solely responsible for (i) procuring, maintaining and securing its network connections and telecommunications links from its systems to Middleware’s data centers, and (ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

7.2 If Customer becomes aware of any actual or threatened activity prohibited by the SaaS Agreement, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Documentation and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Middleware of any such actual or threatened activity.

Charges and Payments

8.1 The Customer shall pay the Subscription Fees to Middleware for the User Subscriptions in accordance with this Clause 8.

8.2 Middleware shall invoice the Customer:
(a) on the Start Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(b) subject to Clause 13.1, on each anniversary of the Start Date for the Subscription Fees payable in respect of the next Renewal Period, and the

Customers shall pay each invoice within 30 days of receipt.

8.3 If Middleware has not received a payment due to it under the SaaS Agreement by its due date, then, without prejudice to any other rights and remedies of Middleware:

(a) Middleware may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Software and Middleware shall be under no obligation to provide any or all of the Services or the Software while the invoice(s) concerned remain unpaid;

(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the Bank of England’s base rate from time to time (or if such base rate is zero or below zero then 8%), commencing on the due date and continuing until fully paid, whether before or after judgment; and

(c) Customer shall reimburse Middleware for all costs incurred by Middleware in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.

8.4 All amounts and fees stated or referred to in the SaaS Agreement:

(a) shall be payable in United States Dollars;

(b) are non-cancellable and non-refundable, except as may be set forth in the Order Form; and

(c) are exclusive of taxes and similar assessments, which shall be added to Middleware’s invoice(s) at the appropriate rate, if applicable. Without limiting the foregoing, Customer is solely responsible for all local, state, provincial, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including, but not limited to, value-added taxes, excise, use, goods and services taxes, consumption taxes or similar taxes on any amounts payable by Customer hereunder. If Middleware has a legal obligation to pay or collect such taxes for which Customer is responsible under the SaaS Agreement, the appropriate amount shall be computed based on Customer’s address which will be used as the ship-to address on the Order Form, and invoiced to and paid by Customer, unless Customer provides Middleware with a valid tax exemption certificate authorized by the appropriate taxing authority.

8.5 Middleware shall be entitled to increase the Subscription Fees and the fees payable with respect to the additional User Subscriptions purchased pursuant to Clause 3.3, at the start of each Renewal Period upon 30 days’ prior notice to the Customer.

Proprietary Rights

9.1 The Customer acknowledges and agrees that Middleware and/or its licensors own all intellectual property rights in the Services, the Software and the Documentation including, without limitation, in the product of any development and/or integration work that Middleware may carry out for the Customer. Except as expressly stated herein, the SaaS Agreement does not grant the Customer any rights to, under or in, any patents, copyright, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services, the Software, the Documentation or of the product of any development and/or integration work that Middleware may carry out for the Customer.

9.2 Middleware confirms that it owns all applicable rights in relation to the Services, the Software and the Documentation that are necessary to grant all the rights it purports to grant under the SaaS Agreement.

Confidentiality

10.1 Each party may be given access to Confidential Information by the other party in order to perform its obligations under the SaaS Agreement. A party’s Confidential Information shall not be deemed to include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving party;

(b) was in the other party’s lawful possession before the disclosure;

(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

(d) is independently developed by the receiving party, which independent development can be shown by written evidence.

10.2 Subject to Clause 10.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the SaaS Agreement.

10.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the provisions of the SaaS Agreement.

10.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any gove


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