This SaaS Agreement is entered into, on the Effective Date by and between Upstream Business Solutions AB (VAT number SE556595150501), d.b.a., Membrain, with its primary office located at Hammarby Kajgata 12, 120 30 Stockholm, Sweden (“Membrain”), and the customer set forth herein or as otherwise identified via a submission on the Membrain website (www.membrain.com) or on an Order (“Customer”). Customer and Membrain are referred to as “Parties” and each individually as “Party”.
BEFORE USING THE PRODUCTS (IN WHOLE OR IN PART), READ THIS SAAS AGREEMENT CAREFULLY. BY USING ANY PRODUCT: (i) YOU AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS SAAS AGREEMENT AND (ii) A LEGALLY BINDING AGREEMENT IS ENTERED INTO BY AND BETWEEN YOU AND MEMBRAIN. IF YOU DO NOT AGREE TO THIS SAAS AGREEMENT, IN ITS ENTIRETY, YOU ARE NOT PERMITTED TO USE ANY PRODUCT.
Membrain has developed certain software-as-a-service Products used by companies in connection with business-to-business sales enablement;
Customer (as defined in this SaaS Agreement, on the www.Membrain.com submission form, and/or on the applicable Order) desires to use one or more Products as set forth in this SaaS Agreement and/or otherwise specified in the www.Membrain.com submission form or Order). The SaaS Agreement regulates the relationship between Membrain and Customer.
The terms of the entire SaaS Agreement are applicable, and this is only a courtesy summary;
1.1 “Authorized User” means an individual employee or consultant of Customer who is authorized by Customer to use the Product(s) on behalf of Customer. Customer shall ensure Authorized Users comply with all terms of this SaaS Agreement.
1.2 “Confidential Information” means (a) the Products and any trade secrets or non-public information related to the foregoing and (b) all other information which is disclosed by Membrain or Customer (hereinafter referred to as the “Disclosing Party”) to the other Party (hereinafter referred to as the “Receiving Party”) orally, electronically, visually, or in a document or other tangible form or medium, which is either identified as or should be reasonably understood to be confidential and/or proprietary.
1.3 “Customer Data” means data, files, Authorized User information, hypertext markup language files, documents, audio and visual information, graphics, scripts, programs, applets or servlets that Customer creates, installs, uploads to or transfers in or through the Products or provides in the course of using the Products.
1.4 “Effective Date” – the date of acceptance of this SaaS Agreement by Customer whether offline or online. In the event Customer submits an Order, the Effective Date of such Order shall be the date of acceptance by Membrain. An Order may be accepted by Membrain in writing or via an online response or an email.
1.5 “Data Processing Agreement” or “DPA”- means the data processing agreement set forth in Appendix “D” hereto.
1.6 “Derivatives”- means (a) for copyrighted or copyrightable material, any abridgment, revision, translation, enhancement, improvement, modification, expansion, compilation or other form in which an existing work may be recast, transformed or adapted, (b) for patented or patentable material, any improvement thereof, or (c) for trade secrets, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent or trade secret.
1.7 “Feedback” means any and all information (in oral, written, electronic or any other form) communicated voluntarily by Customer, directly or indirectly, to Membrain, under this SaaS Agreement or otherwise pertaining to Products, services, or Confidential Information, including, without limitation, performance data, error data, reports, comments, requests, and suggestions.
1.8 “Fees” means the fees set forth on the Order and subject to change from time-to-time (at Membrain’s discretion), according to the terms of this SaaS Agreement. To the extent Customer desires to purchase any consulting services from Membrain, such consulting services shall be subject to a separate agreement (specifying fees and deliverable(s)), in writing, by and between the Parties.
1.9 “Free Product Version” means any Product which is offered, in writing, by Membrain and used by Customer on a free-of-charge basis.
1.10 “Intellectual Property Rights” or “IPR” means any and all now or hereafter known tangible and intangible: (a) right associated with works of authorship throughout the world, including but not limited to, copyrights, moral rights, and mask works; (b) trademarks and trade name rights and similar rights, throughout the world; (c) trade secret and know-how rights throughout the world; (d) patents, designs, algorithms, and other intellectual and/or industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license or otherwise; (e) all registrations, initial applications, renewals, extension, continuations, divisions or re-issues thereof now or hereafter in force; and (f) Derivatives.
1.11 “Order” means the order setting forth the details of Customer’s Product(s) subscription which is subject to the terms of the the current version of the SaaS Agreement and together confirmed by the Parties in writing or otherwise submitted by Customer via the membrain.com ordering interface and accepted by Membrain in writing. Any Order which is submitted by Customer and accepted by Membrain shall be deemed an integral part of this SaaS Agreement. Any Orders placed online at www.membrain.com shall be subject to any restrictions set forth on such website with respect to such Order. Any Customer placing an Order online assumes the responsibility of ensuring a full review of all applicable terms and conditions appearing online at www.membrain.com with respect to such Order.
1.12 “Products” mean Membrain SaaS offerings which are accessed over the Internet and are licensed, not sold.
1.13 “Product Upgrade” or “Upgrade” means new Orders or upgrades of the Products, an increase in the number of Authorized Users during the term of the Agreement, and/or new fee-based features or expanded usage levels.
1.14 “SaaS Agreement” means this agreement between Customer and Membrain and shall include any Orders and Appendices “D” (DPA) and “B” (SLA) hereto. In the event of any inconsistencies, the documents shall prevail in the following order: SaaS Agreement, DPA, SLA, and Order.
1.15 “Service Level Agreement” or “SLA” means the service level agreement set forth in Appendix “B” hereto, applicable solely to Products and expressly excluding Free Product Versions.
2.1 A high-speed Internet connection is required for proper use of the Products. Customer is responsible for procuring and maintaining the network connections that connect its network to the Products, including, but not limited to, updated latest or second latest versions of the “web browsers” Microsoft Internet Explorer, Google Chrome, or Firefox and to follow procedures for accessing services that support the access to the Products. Membrain is not responsible for notifying Customer of any upgrades, fixes, or enhancements to any such software or for any compromise of data, including Customer Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated, or controlled by Membrain. Membrain assumes no responsibility for the reliability or performance of any connections as described in this section.
2.2 Products shall be accessible to Customer within 5 business days following Membrain’s receipt of the full, initial payment of Fees with respect to the applicable Products.
3.1 Subject to the terms and conditions of this SaaS Agreement and any applicable fees, Membrain hereby grants Customer, during the term of the SaaS Agreement, a non-exclusive, non-transferable, time-limited, right to access the Products for the sole purpose of using the Products and for the storage of Customer information therein. Products may only be used by Customer, or any authorized third parties, for such purposes as permitted by Membrain in writing. To use Products, Customer must create valid user account(s) for each Authorized User and keep all information current, accurate, and true.
3.2 For the avoidance of doubt, it is expressly agreed the Customer’s right to use Products shall include an obligation for Customer and Authorized Users to comply with all instructions and guidelines as may be generally issued by Membrain during the term of the SaaS Agreement.
3.3 As a condition of Customer’s use of the Products, Customer and Authorized Users will not use the Products for any purpose that is unlawful, prohibited by or not expressly permitted under this SaaS Agreement. Customer and Authorized Users may not use Products in any manner that in Membrain’s sole discretion could damage, disable, overburden, impair or interfere with any other Customer’s or any other authorized party’s use of the Products. Customer and Authorized Users may not intentionally interfere with or damage the operation of the Products or any user’s enjoyment of the Products, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code. Customer and Authorized Users may not remove, circumvent, disable, damage, or otherwise interfere with any security-related features of the Products, features that prevent or restrict the use or copying of any content accessible through the Products, or features that enforce limitations on the use of the Products. Customer and Authorized Users may not attempt to gain unauthorized access to the Product, or any part of it, other accounts, computer systems or networks connected to the Products, or any part of it, through hacking, reverse engineering, password mining or any other means or interfere or attempt to interfere with the proper working of the Products or any activities conducted in relation to the Products. Customer and Authorized Users may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Products. Customer and Authorized Users agree neither to modify the Products in any manner or form, nor to use modified versions of the Products, including (without limitation) for the purpose of obtaining unauthorized access to the Products.
3.4 Except as permitted by this Agreement, Customer and Authorized Users shall not:
a) copy Products for any purpose nor arrange or create Derivatives based on the Products (in whole or in part) without Membrain's express prior written consent in each case;
b) modify or in any other way change or alter the Products, nor allow anyone else to do so;
c) itself or permit others to decompile, reverse-engineer, or disassemble Products or any part thereof; or
d) take any action that imposes an unreasonable or disproportionately large load on the Products; use the Products, to bypass any login architecture or create or provide any other means through which the Products may be accessed, and/or the Products may be used by others.
3.5 U.S. Government Restricted Rights: All Products, services, Confidential Information, and documentation are "Commercial Items", as that term is defined in 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are defined in 48 C.F.R. §252.227-7014(a)(5) and 48 C.F.R. §252.227-7014(a)(1), and used in 48 C.F.R. §12.212 and 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. §12.212, 48 C.F.R. §252.227-7015, 48 C.F.R. §227.7202 through 227.7202-4, 48 C.F.R. §52.227-14, and other relevant sections of the Code of Federal Regulations, and, as applicable, Products and documentation are licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this SaaS Agreement.
3.6 In the event the Uniform Computer Information Transactions Act, any version thereof, a substantially similar law or any other statutes implied for Internet transactions (collectively “UCITA”) is enacted as part of the law of any applicable state of the United States or any applicable country or any applicable region within any country, such statute shall not govern any aspect of this SaaS Agreement, any rights or licenses granted hereunder, nor any of the Parties’ rights and/or obligations arising pursuant to this SaaS Agreement. This SaaS Agreement and the Parties’ rights and obligations arising hereunder shall be governed according to this SaaS Agreement solely on its express terms.
4.1 Customer grants Membrain all rights and permissions necessary and provides Membrain access to Customer Data and Authorized Users accounts in order for Membrain to provide the Products and any services. These permissions also extend to trusted third parties Membrain collaborates with to provide the Products and any services, for example Amazon or other third parties, providing cloud hosting services, etc.
4.2 Membrain shall use commercially reasonable efforts to maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data. Membrain shall not: (a) modify Customer Data with the exceptions stated in this SaaS Agreement; (b) disclose Customer Data except as compelled by law, this SaaS Agreement or as expressly permitted in writing by Customer; or (c) access Customer Data except to provide the Products, any services, and to prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.
4.3 Customer is responsible for all data it stores in the Products and the cloud and shall indemnify and hold Membrain harmless against any third-party claims regarding Customer Data. Customer understands and agrees neither Membrain nor any Membrain hosting supplier has control over the content of the data processed and that Membrain (or the hosting supplier, as applicable) provides the Products and any related services on Customer’s behalf. If Customer transmits data to another hosting provider or storage system such transmission and any related interaction is at Customer’s sole risk. Neither Membrain nor any of Membrain’s hosting suppliers will be responsible for any disclosures, modifications or deletions of Customer Data resulting from any such transmission. Neither Membrain nor any of Membrain’s hosting suppliers make any warranties regarding, or will have any liability for, such transmissions.
4.4 Products and services may be subject to limitations, such as, for example, limits on disk storage space, on the number of calls Customer and Authorized Users are permitted to make against Membrain’s application programming interface, or other usage limits. Membrain will notify Customer of such limits.
5.1 Customer shall pay Fees as set forth in the Order, subject to change from time-to-time by Membrain. Payment shall be made by Credit Card or against Membrain’s invoice. Unless otherwise indicated, all Fees associated for the Products are due in full upon commencement of the subscription term for which Fees apply. Fees are non-refundable once taking effect. To the extent Customer uses a credit card, paypal or any other online payment solution, Membrain may securely share Customer’s credit card information with third parties as necessary for payment processing. Moreover, to the extent any recurring or additional Fees shall apply in connection with any Customer subscription or purchase, such subsequent payments of Fees can be applied to the same payment method used for the immediately preceding applied charges—unless Customer has informed Membrain otherwise in writing.
5.2 If Customer submits an Order for any Product Upgrade or otherwise engages in the use of a Free Product Version to the extent that fee-based thresholds are reached, any incremental Fees associated with such Upgrade etc. will be prorated (in the event fee-based levels had already been accruing with respect to the subscription) over the remaining period of the then current term of the subject subscription, charged to Customer’s account and/or invoiced due and payable upon implementation of such Upgrade. In any subsequent term, the Fees will reflect the latest Fees and any such Upgrades, unless the Products and services are otherwise changed for the subsequent term as reflected by change orders as agreed between the Parties in writing.
5.3 No refunds or credits for Products Fees or other Fees or payments will be provided to Customer if Customer elects to downgrade the services ordered during the respective subscription term. Downgrading the services may cause loss of content, features, or capacity of the Products and any services as available to Customer under Customer’s account, and Membrain shall not be liable for any such loss.
5.4 Customer shall fully and timely pay all Fees for the Products, Upgrades, and related services ordered. Customer is responsible for providing Membrain with valid payment and credit card information and/or invoice address and related information to secure payment. Membrain reserves the right to cancel any Order if the payment, invoice, or credit card information provided is invalid.
5.5 If Customer fails to timely pay any Fee on the date due for payment, Membrain may suspend the services or terminate this SaaS Agreement (in whole or in part) immediately without further notice. Upon termination, the rights granted by Membrain to Customer pursuant to Section 3 hereof shall automatically expire. In addition to any other remedies available under this SaaS Agreement or pursuant to compulsorily applicable law, Membrain shall in event of Customer’s delay with any payment hereunder, be entitled to:
a) immediately suspend performance of all Products and services under this SaaS Agreement or otherwise in relation to Customer until full payment has been received; and
b) receive all costs of collection plus penalty interest on all unpaid amounts, calculated at 1% per commenced month of delinquency.
5.6 The amounts payable to Membrain pursuant to the SaaS Agreement are exclusive of any taxes (including, without limitation, value added taxes and withholding taxes), duties or governmental charges. Customer’s payment of Fees shall be made free and clear without deduction for any and all present and future taxes, duties or governmental charges imposed by any taxing authority, and/or any other setoffs.
5.7 Customer shall pay all applicable banking and transactional fees, etc. that may be associated with the payment of Fees to Membrain.
5.8 Should Customer order any services (and Membrain agree in writing to provide such services) which are in addition to Product(s), Customer shall timely pay all applicable fees for such services. Orders for services are binding once accepted by Membrain in writing (digital acceptance shall suffice). Fees for services are subject to change by Membrain should any scope of work or times be altered. All services are provided by Membrain on a commercially reasonable basis meaning Membrain puts forth commercially reasonable efforts to materially comply with service requirements and estimated time-frames agreed to, in writing, by the Parties. To clarify, delivery times are reasonable estimates only. Customer shall provide Membrain with the reasonable information and support necessary for Membrain to timely perform and/or produce the applicable services. Customer shall have a binding obligation to pay for the applicable Product(s) notwithstanding the provision of any services. To the extent Customer orders services from any third party (regardless of whether Membrain is a subcontractor of such third party), Customer understands and agrees that such agreement between Customer and the respective third party shall have no bearing on Customer’s obligations under this Agreement. Membrain shall be permitted to use subcontractors in connection with the provision of any services to Customer.
6.1 Neither Party shall disclose Confidential Information to any third Party. Each Party shall further safeguard Confidential Information with the same degree of care as it uses to protect its own confidential information of like importance but in no event with less than reasonable care. Except for the lawful exercise of its rights under this SaaS Agreement, neither Party shall use, make, or have made any copies of Confidential Information, in whole or in part, without the prior written authorization of the other Party. Each Party shall only disclose Confidential Information to its employees and consultants (“Representatives”) having a need to know for the purposes of this Agreement. Each Party shall notify and inform its Representatives of its/her/his/their limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information and shall obtain or have obtained its written agreement to comply with such limitations, duties, and obligations. Each Party shall be liable for any breach of the terms of this SaaS Agreement by any of its Representatives.
6.2 The obligations set forth in Section 6.1 above shall not apply with respect to information that:
a) is or becomes lawfully known by the Receiving Party without an obligation to maintain its confidentiality (as evidenced by Receiving Party’s written records);
b) is or becomes generally known to the public through no act or omission of Receiving Party;
c) is independently developed by the Receiving Party without use of the Confidential Information (as evidenced by Receiving Party’s written records); or
d) is required to be disclosed by law, order or regulation or governmental agency or court of competent jurisdiction.
6.3 In the event Receiving Party is required to disclose Confidential Information pursuant to law, order or regulation or governmental agency or court of competent jurisdiction, such Party shall notify the Disclosing Party of the required disclosure with sufficient time to seek relief, cooperate with the Disclosing Party in taking appropriate protective measures, and shall make such disclosure in the fashion which maximizes protection of the Confidential Information from further disclosure.
6.4 The obligations set forth under this Section 6 shall continue for as long as the Confidential Information is of value to disclosing party and until one of the exclusions in Section 6.2 applies thereto.
6.5 Customer agrees Membrain and its suppliers shall have the right to access Customer Data and to use, modify, reproduce, distribute, display, and disclose Customer Data solely to the extent necessary to provide the Products and related services, including, without limitation, in response to support requests. Any third-party service providers will only be given access to Customer’s account and Customer Data as is reasonably necessary to provide the Products/services and will be subject to confidentiality obligations.
6.6 Membrain may also access or disclose information about Customer, Customer’s account, and Customer Data, in order to: (a) comply with the law or respond to lawful requests or legal process; (b) protect Membrain’s or its customers’, partners’, or suppliers’ rights or property, including enforcement of the SaaS Agreement or other policies associated with the Products or services; (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.
6.7 Membrain may collect certain information about Customer as well as Customer’s mobile devices, computers, and use of the Products and services. Membrain uses, discloses, and protects this information as described in Membrain’s DPA (Appendix “D” hereto) and as summarized at www.membrain.com/privacy.
6.8 Upon execution of the SaaS Agreement, Membrain shall have the right to publicly reference, in Membrain’s marketing materials—whether offline or online—Customer as a Membrain customer, and Membrain shall be permitted to use any relevant Customer trademark and/or logo in connection with such marketing usage. Customer shall assist Membrain in procuring any and all relevant information regarding Customer’s use of the Products. Membrain shall have the right to use information and material in a case study for in-house use and, upon Customer’s approval, publication by Membrain on its websites and in marketing material.
7.1 Except for the usage rights expressly granted to Customer pursuant to Section 3.1 above, Membrain retains all right, title, and interest in and to the Products, services, and any Feedback provided by Customer to Membrain. Membrain shall be free to use and/or commercialize any Feedback without having to make any accounting or payment to Customer, any Authorized User, and/or any Customer Representative. Should Customer retain Membrain for the provision of any consulting services, the Parties agree all IPR emanating therefrom shall vest in Membrain; however, Customer shall have a right to use such consulting services deliverables on the same terms as Customer has the right to use the Products pursuant to this Agreement and during the term of this Agreement. CUSTOMER ASSIGNS TO MEMBRAIN ALL IPR AS NECESSARY TO GIVE FULL EFFECT TO THIS SECTION 7.1.
7.2 As between Customer and Membrain, Customer owns all right, title, and interest in and to Customer Data; Membrain is only a custodian of such data when it is stored in the Customer’s account(s).
8.1 Customer and Authorized Users shall retain, reproduce, and apply any copyright notices and/or other proprietary rights notices included on or embedded in the Products and services.
9.1 MEMBRAIN WILL DEFEND, INDEMNIFY, AND HOLD HARMLESS CUSTOMER FROM AND AGAINST ANY ACTIONS, CLAIMS, COSTS, DEMANDS, LIABILITY, AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING OUT OF MEMBRAIN’S INFRINGEMENT OF ANY THIRD PARTY’S IPR.
10.1 CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS MEMBRAIN, ITS PARENT, AND AFFILIATES, FROM AND AGAINST ANY ACTIONS, CLAIMS, COSTS, DEMANDS, LIABILITY, AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING OUT OF CUSTOMER DATA OR CUSTOMER’S USE OF THE PRODUCTS AND/OR SERVICES IN ANY MANNER NOT EXPRESSLY PERMITTED UNDER THIS AGREEMENT.
11.1 Membrain warrants that, to the best of its knowledge, the Products, solely in their unmodified form, do not infringe any third party’s copyright(s), trade secret(s) or patent(s) granted as of the Effective Date. Membrain shall defend, indemnify, and hold harmless Customer from and against any and all damages, costs and expenses incurred as a result of Membrain’s breach of its warranty under this Section 11.1; provided Membrain has been notified without undue delay in writing of such claim and given authority, information, and assistance to settle the claim or control the defense of any suit or proceeding. This indemnification obligation expressly excludes any claims arising from Customer’s improper use of the Product(s); in the event the Product(s) have been modified or altered in any manner; or if the claim results from the combination of any Product with any third-party software, SaaS, or hardware. Further, Membrain shall have no obligation to indemnify Customer if Customer had not, at the time the claim against the Customer arose, been current in paying any and all Fees, to Membrain, under this Agreement.
11.2 IN NO EVENT, EXCEPTING ANY ACTION BASED UPON WILLFUL MISCONDUCT, EXPLICITLY UNDERTAKEN INDEMNIFICATION OBLIGATIONS, CUSTOMER FAILURE TO TIMELY PAY, ONE PARTY’S INFRINGEMENT OF THE OTHER PARTY’S IPR OR BREACH OF CONFIDENTIALITY, SHALL EITHER PARTY HERETO BE ENTITLED TO, REGARDLESS OF WHETHER A CLAIM OR ACTION IS BASED UPON STRICT LIABILITY; NEGLIGENCE; INDEMNIFICATION; BREACH OF CONTRACT, WARRANTY, SERVICES, DPA, SLA, UPGRADES, OF ANY KIND, INDEMNIFICATION OR ANY OTHER THEORY OF LIABILITY IN CONNECTION WITH THIS SAAS AGREEMENT (INCLUDING THE APPENDICES AND ANY ORDER(S)), ANY:
a) PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR FOR LOST DATA, WHETHER OR NOT THE PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, NOR
b) AN AGGREGATE AMOUNT OF DAMAGES EXCEEDING THE LESSER OF USD TEN THOUSAND (10,000) OR THE AMOUNT ACTUALLY PAID BY CUSTOMER TO MEMBRAIN DURING THE 1 YEAR PERIOD IMMEDIATELY PRECEDING THE CLAIM IN QUESTION. ANY PAYMENTS DUE AND OWING BY CUSTOMER TO MEMBRAIN (INCLUDING ANY ATTORNEYS’ FEES AND/OR COLLECTION COSTS RELATED THERETO) SHALL NOT BE DEEMED “DAMAGES” UNDER THIS SECTION. THIS LIMITATION OF LIABILITY CAP IS AGGREGATED AND NOT PER INCIDENT.
11.3 UNLESS STATED EXPRESSLY OTHERWISE IN THIS SECTION 11, THE PRODUCTS AND ANY SERVICES RELATED THERETO ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. MEMBRAIN AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. FREE PRODUCT VERSIONS ARE PROVIDED ON AN “AS IS” BASIS ONLY AND NO SLA OR WARRANTIES OF ANY KIND SHALL APPLY THERETO WHETHER EXPRESS OR IMPLIED THUS EXCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
11.4 THE LIMITATIONS OF LIABILITY AND WARRANTY DISCLAIMERS IN THIS SECTION 11 ARE MATERIAL, BARGAINED FOR BASES OF THE AGREEMENT, AND HAVE BEEN RELIED UPON IN DETERMINING THE CONSIDERATION (IF ANY) TO BE PAID UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
11.5 Should Customer desire to obtain a higher level of liability coverage and/or any type of extended warranty, support or service level, Customer shall contact Membrain with a specific request in writing, and Membrain shall reply with a quote for such additional Membrain undertakings.
11.6 Customer understands and agrees Membrain has no responsibility or liability for the deletion or failure to store any content and/or for other communications maintained or transmitted through the Products or any services related thereto. Customer further acknowledges Customer is solely responsible for properly configuring all services contemplated herein, for taking steps to maintain appropriate security, and for backing up content and Customer Data.
11.7 To the extent any Product utilizes artificial intelligence ("AI") technology, such results derived therefrom are provided "as-is" and "as available." While Membrain strives to maintain the accuracy, reliability, and functionality of the AI and the integrity of the AI results, it does not guarantee the AI will meet Customer's specific requirements, operate without interruption, be unique or be error-free. Customer acknowledges AI is subject to inherent limitations, including but not limited to possible inaccuracies, biases, pre-existing or incomplete information.
12.1 Unless stated otherwise in the Order, this SaaS Agreement shall commence on the Effective Date and run for 3 years from the date thereof. The Agreement shall automatically renew for periods of 1 year at a time unless either party submits termination notice to the other, in writing, no later than 90 calendar days prior to the conclusion of the initial term or any annual extension thereafter, subject to any lengthier termination requirements of any existing Order subscriptions (as additional subscriptions may be entered into after the Effective Date of the Agreement. To clarify, Product subscriptions, unless stated otherwise in the respective Order, run for an initial period of 3 years and automatically renew for periods of 1 year at a time unless either party submits termination notice to the other, in writing, no later than 90 calendar days prior to the conclusion of the initial term of the Product subscription or any annual extension thereafter. If any existing Product subscription term(s) exceed the Agreement term, the Agreement shall be extended until the conclusion of the outstanding Product subscription terms. In the event of a material breach (including, without limitation, delinquent payment) of this Agreement by either party not remedied (to the extent capable of remedy) within 30 calendar days from the other party's written notice thereof or in case either party should become bankrupt or insolvent, the other party shall have the right to terminate this SaaS Agreement with immediate effect.
12.2 After termination of the SaaS Agreement by either party pursuant to Section 12.1 above, Customer’s rights with respect to Products shall cease and Customer shall promptly, completely, and irrevocably purge and otherwise destroy any and all copies of the same.
12.3 The foregoing rights of termination are in addition to all other rights and remedies provided in this SaaS Agreement or at law, subject to the express limitations of liability set forth in Section 11 hereof.
13.1 In the event of termination of the SaaS Agreement, Customer’s and Authorized Users’ right to use the Products and storage of information shall automatically expire upon the day of termination. Within 30 calendar days of the date of termination, Customer and Authorized Users shall cease using the Products, close down its accounts, and within 45 calendar days transfer Customer Data elsewhere.
13.2 After expiration of this 45-day period, Membrain is entitled to erase any and all Customer Data from its and/or its hosting suppliers’ systems.
13.3 The provisions of Sections 1, 5-11, 13, and 16 shall survive any termination of this SaaS Agreement as well as any other term or condition which by its nature is clearly intended to survive termination of this SaaS Agreement.
14.1 Under this SaaS Agreement, Customer consents to communicate with Membrain electronically. Membrain will communicate by email or by posting notices within the Products, services related thereto, and/or on the Membrain website. Customer agrees that all agreements, notices, disclosures, and other communications provide by Membrain electronically shall satisfy any legal requirement that such communications be in writing.
15.1 Customer may not assign or otherwise transfer any of its rights or obligations under this SaaS Agreement, without the prior written consent of Membrain.
15.2 Membrain may assign or otherwise transfer any of its rights or obligations under this SaaS Agreement to a third party, without the prior written consent of Customer, provided the assignee agrees all assigned obligations under this SaaS Agreement shall be fully binding upon such assignee.
16.1 Governing Law. This SaaS Agreement is governed by the substantive laws of Sweden, giving no effect to any conflict-of-laws provisions. ANY DISPUTE SHALL BE FINALLY AND EXCLUSIVELY SETTLED BY EXPEDITED ARBITRATION IN STOCKHOLM, SWEDEN IN ACCORDANCE WITH THE ARBITRATION RULES OF THE STOCKHOLM CHAMBER OF COMMERCE. CUSTOMER WAIVES ANY RIGHT TO A JURY TRIAL. The losing Party shall pay the prevailing Party’s reasonable arbitration costs and attorneys’ fees. Each Party agrees any judgement or arbitration award shall be enforceable against it in any jurisdiction as necessary to reasonably enforce such judgement or award. The United Nations Convention on the International Sale of Goods is expressly excluded from this SaaS Agreement.
16.2 Amendment, Waiver, Entire Agreement. No amendment to this SaaS Agreement or waiver shall be valid unless based on a written and signed undertaking. Any waiver of any term or condition of this SaaS Agreement shall not be deemed to constitute a continuing waiver. This SaaS Agreement contains the entire agreement between the Parties on the subject matter of this SaaS Agreement, and supersedes all memoranda, representations, undertakings, and agreements, whether oral or written, previously made between the Parties with respect to the subject matter of this SaaS Agreement. In the event any provision of this SaaS Agreement is deemed by a court or tribunal of competent jurisdiction to be unenforceable, such provision(s) shall be limited or eliminated to the minimum extent necessary so this SaaS Agreement shall otherwise stay in full force and effect.
16.3 Relationship between the Parties. No relationship of principal to agent, employer to employee, partnership, or joint venture is established between the Parties. Neither Party shall bind the other Party or incur any obligation on its behalf. Customer understands and agrees that any Membrain Partner and/or reseller, with whom Customer may or may not have entered into any contractual relationship, is not a legal representative of Membrain and, as such, Membrain shall not bear any liability of any kind in connection with any Membrain Partner and/or reseller breach of any agreement or undertaking with Customer. Further, Customer understands and agrees that should any applicable Membrain authorized reseller be terminated by Membrain, that Membrain shall be permitted to remove and replace such Membrain authorized reseller and thereby recover any and all outstanding and future Fees directly from Customer.
16.4 Export. In addition to the terms of this SaaS Agreement, Customer may not use or otherwise export or re-export the Products in any manner violative of the laws of the United States, the laws of the jurisdiction in which the Product(s) was/were obtained as well as the laws of any other country which are applicable to this Agreement.
Last Updated: Jan 17, 2025
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