This Larky SaaS License Agreement (“Agreement”) is entered into between Larky, Inc., a Delaware corporation (“Larky”), and Customer and governs Customer’s access to and use of the SaaS Service. Capitalized terms not otherwise defined herein are defined in Section 16 below.
If Customer has been granted access to the SaaS Services through one of Larky’s technology partners that is not a Reseller, such Customer will not execute a Larky Order for use of the SaaS Services. In this event, notwithstanding any other provisions of this Agreement: (a) the Effective Date of this Agreement shall be the date Customer first accesses the SaaS Services; (b) Customer shall not be charged any fees under this Agreement; (c) Customer shall receive only the base functionality and Support for the SaaS Services, and Customer may upgrade the SaaS Services (and corresponding Support) upon execution of a Larky Order with Larky or a Reseller; (d) Customer’s License Term will be for as longas Larky’s technology partner continues to have an agreement with Larky for the SaaS Services, subject to the termination provisions of the Agreement; and (e) Larky will not provide professional services, consulting services or other deliverables to Customer without the execution of a Larky Order.
1 License
1.1 From Larky to Customer. Subject to this Agreement, Larky grants to Customer, and Customer agrees to comply with a non-sublicensable, non-transferable, non-exclusive, terminable, limited license in the Territory to use the SaaS Services to access, use, and display the Content.
1.2 From Customer to Larky. By submitting Customer Content to Larky through the SaaS Services, Customer grants to Larky a limited, irrevocable, royalty-free, and non-exclusive license, in the Territory, during the Term, to reproduce, adapt, modify, translate, display and distribute this Customer Content solely to enable Larky to provide and improve the Services to Customer.
2 Restrictions
2.1 License Restrictions. Prior to obtaining access to the SaaS Services, Customer shall ensure that Authorized Users have confidentiality obligations that protect Larky’s Confidential Information and Larky Intellectual Property to the same extent as this Agreement and in each case is registered in the SaaS Services with a unique UserID and a unique password. Customer is responsible for all activities conducted under its Authorized User logins and for its Authorized Users’ compliance with this Agreement. Authorized Users may only use the SaaS Services during the License Term and subject to the terms of this Agreement and any applicable Larky Order.
Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer and Authorized Users will not, and will not permit third parties to: (a) use the SaaS Services except as expressly authorized in this Agreement; (b) access or use the SaaS Services to circumvent or exceed the applicable restrictions; (c) use any device, software, or routine that interferes or disrupts any application, function, or use of the SaaS Services; (d) copy, modify, translate, transmit, reproduce, distribute, republish, display, frame, or mirror the SaaS Services, except as permitted by this Agreement; (e) decompile, reverse-compile, disassemble, reverse-engineer or otherwise reduce to human-perceivable form all or any part of the SaaS Services or any part of the SaaS Services or otherwise attempt to discover any source code or create derivative works of the SaaS Services or any part of the SaaS Services; (f) rent, lease, resell, sublicense, or otherwise permit third parties to access or use the SaaS Services; (g) use the SaaS Services to provide services to third parties (e.g., as a service bureau or to otherwise provide data processing services to third parties); (h) circumvent or disable any security or other technological features or measures of any SaaS Services or any part of the SaaS Services; (i) use the SaaS Services to build a similar or competitive productor service; (j) create user accounts under false or fraudulent pretenses; (k)create shared or generic identifications and passwords to any SaaS Services; (l) use the SaaS Services in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights; (m) use the SaaS Services to send or store viruses, worms, time bombs, trojan horses, or other harmful or malicious code, files, scripts, agents or programs; (n) access the SaaS Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (o) remove, alter or obscure any of the intellectual property rights notice(s) or restrictive legend(s) embedded in or that Larky otherwise provides with the SaaS Services; (p) interfere with or disrupt the integrity or performance of the SaaS Services; or (q) obtain unauthorized access to the SaaS Services (including without limitation permitting access to or use of the SaaS Services via another system or tool, the primary effect of which is to enable input of requests or transactions by other than Authorized Users).
2.2 Cooperation and Access. As a condition to Larky’s obligations hereunder, Customer shall at all times: (a) provide Larky with good faith cooperation and access to such information as may be reasonably required by Larky in order to provide the SaaS Services, including, but not limited to, providing Customer materials and information; (b) provide such personnel assistance as may be reasonably requested by Larky from time to time; and (c) carry out in a timely manner all other Customer responsibilities set forth in this Agreement. In the event of any delay in Customer’s performance of any of the obligations set forth in (a), (b) or (c), or any other delays caused by Customer, Larky may adjust its performance as reasonably necessary to account for such delays.
2.3 Compliance. Customer is responsible for complying with any applicable laws relating to its or any Authorized User’s use of the SaaS Services including, without limitation, all applicable privacy, electronic communications, and data protection laws, rules, regulations, and regulatory guidelines. Without limiting the generality of the foregoing, Customer is solely responsible for: (a) ensuring that Customer and Larky, acting on Customer’s behalf, have the right to collect, use and share personal data and related materials via the SaaS Services; and (b) providing adequate notice to, and obtaining any necessary consents from, Customer’s audience, end-users and any other applicable third parties, as required under applicable laws, with respect to the Customer Content and Customer intellectual property collected, used and shared by Customer, or by Larky on Customer’s behalf, via the SaaS Services.
2.4 Third Party Components. Any third party component embedded, included or provided by Larky for use with the SaaS Services may only be used in conjunction with the SaaS Services, and this use is subject to this Agreement and the Documentation. However, to the extent SaaS Services include components governed by open source licenses with provisions inconsistent with this Agreement, those components are instead governed solely by the applicable open source licenses. To the extent SaaS Services include components covered by open source licenses requiring the provision of corresponding source code for those components, Larky hereby offers the provision of such source code consistent with those licenses.
3 Ownership and Publicity
3.1 Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's Intellectual Property Rights. Intellectual Property Rights in and to the content accessed through the SaaS Services are the property of the applicable content owner and may be protected by applicable laws. Not withstanding the foregoing, Larky retains all right, title and interest in and to all SaaS Services (including any object and source code thereto), scripts, deliverables including any items identified in the applicable Larky Order (the “Larky Intellectual Property”). Nothing contained herein and/or omitted here from shall be deemed to transfer any right(s), title(s) and/or interest(s) in the Larky Intellectual Property to Customer and/or any other party or non-party.
3.2 In connection with the operation of the SaaS Services, Larky may collect and analyze data in aggregate and anonymous form with respect to the use and effectiveness of the SaaS Services(the “Aggregate Data”). Customer hereby irrevocably authorizes Larky to collect data in an aggregate and anonymous form for supporting, improving, and marketing the SaaS Services. Customer acknowledges and agrees that Larky will exclusively own all right, title, and interest in and to all Aggregate Data and other analytics and output data generated or provided by Larky or the SaaS Services.
3.3 Feedback. Customer or Authorized Users providing any suggestions, enhancement requests, recommendations, corrections or other feedback (collectively, “Feedback”) is strictly voluntary. If Customer of any Authorized User provides any Feedback to Larky, orally or in writing, Customer hereby grants to Larky a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the SaaS Services any Feedback.
3.4 Publicity. Both parties will work together to release a public statement regarding the relationship contemplated by this Agreement.
4 Support
4.1 Larky will provide Support to Customer in accordance with the technical support services guidelines as set forth in the Documentation for the License Term. Unless otherwise agreed inwriting, to receive Support, Customer must provide Larky with reasonably required access. Customer's failure to provide this access will be at Customer's own risk and without liability to Larky. If the Larky Order does not identify a support level, then Larky will provide standard support. Larky may change the Support from time to time, but not if the changes materially adversely impact Customer.
4.2 Support is dependent on Customer utilizing the latest version of the SaaS Services.
5 Ordering and Overages
5.1 Larky or Reseller and Customer shall agree upon an Larky Order for each purchase in writing, to confirm the SaaS Services, usage parameters and price.
5.2 If Customer exceeds any usage parameter specified in the Larky Order during the License Term, Customer will be charged for any Overages.
6 Confidentiality and Privacy.
6.1 Obligations. Each party will: (a) protect the other party's Confidential Information with the same standard of care it uses to protect its own Confidential Information, but in no event less than reasonable care; and (b) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its Affiliates, employees and agents in violation of this Section.
6.2 Exceptions. Confidential Information does not include information that: (a) the recipient already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party
6.3 Required Disclosure. Each party may disclose the other party's Confidential Information when required bylaw, but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
6.4 Security Controls. Larky has implemented and will maintain appropriate security controls to protect information within the SaaS Services as described in Larky’s security documentation. Larky will handle PII in accordance with the Larky’s privacy policy and applicable data protection laws.
6.5 Incident Management. Customer is required to report any security incidents related to the SaaS Services in accordance with Larky’s incident response policy. Larky and Customer will cooperate on the investigation and remediation of any incidents.
6.6 Training and Awareness. Customer is responsible for ensuring that its Authorized Users are trained on the appropriate use of the SaaS Services and any related security obligations.
6.7 Audits and Third-Party Attestations. Larky will conduct regular audits of its security practices and provide summaries of audit results upon Customer request, subject to the confidentiality provisions of this Agreement.
7 Term and Termination
7.1 Agreement Term. This Agreement will remain in effect for the Term Length specified in the Larky Order.
7.2 License Term. The term for the license granted in this Agreement will begin on the Effective Date and will continue for the License Term, unless terminated earlier as set forth below.
7.3 Auto-Renewal. At the end of the License Term, the License Term for the SaaS Services will automatically renew for consecutive renewal terms of twelve months. If Customer or Larky does not want the SaaS Services to renew, then it must provide the other party written notice to this effect at least thirty (30) days prior to the end of the then current term. This notice of non-renewal will be effective upon the conclusion of the then current term.
7.4 Revising Rates. Larky or Reseller may revise its rates with at least thirty (30) days prior written notice to Customer (which may be via email), effective for the following term.
7.5 Termination for Breach. Either party may terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days. With respect to breaches of a specific Larky Order, either party may terminate the applicable Larky Order if: (i) the other party is in material breach of the Larky Order and fails to cure that breach within thirty (30) days after receipt of written notice.
8 Effect of Termination
8.1 Termination for Customer's Breach. If the Agreement is terminated for a party's uncured material breach, then: (i) the License Term, and all other rights and licenses granted by one party to the other and the SaaS Services will cease immediately; (ii) upon request, each party will promptly return all Confidential Information of the other party; and (iii) Customer must delete any data it received from Larky as part of receiving the SaaS Services.
8.2 Expiration of the License Term. On the expiration of the License Term, the Services will cease functioning and this Agreement will terminate.
9 Representations and Warranties. Each party represents that it: (a) has the rights, power and authority necessary to enter into this Agreement; and (b) will perform its obligation sunder this Agreement in accordance with applicable law.
10 Disclaimer. EXCEPTAS EXPRESSLY PROVIDED FOR HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SAAS SERVICES ARE PROVIDED “AS IS” AND LARKY, ITS LICENSORS, AND THEIR SUPPLIERS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. LARKY, IT’S LICENSORS, AND THEIR SUPPLIERS, DO NOT WARRANT THAT THE OPERATION OF THE SAAS SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.
11 Indemnification
11.1 By Larky. Larky will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of a third party claim that the technology used to provide the SaaS Services infringes or misappropriates any patent, copyright, trade secret or trademark of that third party.
11.2 Exceptions. The obligations set forth in Section 11.1 do not apply if the third party claim is caused by, or results from: (a) Customer's combination or use of the SaaS Services with software, services, or products developed by Customer or third parties, if the claim would have been avoided by the non-combined or independent use of the SaaS Services; (b) modification of the SaaS Services, or Content, by anyone other than Larky if the third party claim would have been avoided by use of the unmodified SaaS Services; (c) Customer's continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement; (d) Customer's use of the SaaS Services or Content in a manner not in accordance with this Agreement or the Documentation; or (e) use of other than Larky's most current release of the SaaS Services if the third party claim would have been avoided by use of the most current release or revision.
11.3 By Customer. Customer will indemnify, defend, and hold harmless Larky from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of a third party claim that the Customer Content violates the Intellectual Property Rights of a third party..
11.4 Possible Infringement
11.4.1 Repair, Replace, or Modify. If Larky reasonably believes the SaaS Services infringes a third party's Intellectual Property Rights, then Larky will: (a) procure for Customer the right to continue to use the SaaS Services; (b) replace the SaaS Services; or (c) modify the SaaS Services to avoid the alleged infringement.
11.4.2 Termination and Refund. If Larky does not reasonably believe the options in Section 11.4.1 are commercially reasonable, Larky may terminate the license for the allegedly infringing SaaS Services and will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of such SaaS Services.
11.5 General. The party seeking indemnification must promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnification in Sections 11.1and 11.3 is limited to the payment by the indemnifying party of all damages and costs finally awarded for such claim, or settlement costs approved in writing by the indemnifying party. The indemnifying party has full control and authority over the defense, except that any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party's prior written consent, which will not be unreasonably withheld or delayed. THE INDEMNITIES ABOVE ARE A PARTY'S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
12 Limitation of Liability
12.1 Limitation on Indirect Liability. NEITHER PARTY, NOR ITS RESELLERS, LICENSORS OR SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
12.2 Limitation on Amount of Liability. NEITHER PARTY, NOR ITS RESELLERS, LICENSORS OR SUPPLIERS, MAY BEHELD LIABLE UNDER THIS AGREEMENT FOR THE LESSER OF THE AMOUNT PAID BY CUSTOMERTO LARKY DURING THE SIX MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY OR $50,000.
13 Fees
The provisions of this Section apply only if Customer orders the SaaS Services directly from Larky. Payment terms agreed to between Customer and Reseller are not binding on Larky. Fees will be invoiced to Customer in United States dollars. All fees due shall be due and payable within thirty (30) days of invoice date. Larky may send all Customer invoices electronically (by email or otherwise). All fees are based on access rights acquired and not actual usage. Customer shall provide Larky with complete and accurate billing contact information including a valid email address. Except as expressly set forth herein, all payment obligations are non-cancellable and all payments made are non-refundable.
14 Taxes
Customer will be responsible for paying all sales, use, excise and other taxes with respect to its purchase and use of the SaaS Services, which shall exclude any taxes based on Larky’s income, or which are Larky’s responsibility as an employer.
15 Miscellaneous
15.1 Notices. All notices must be in writing and addressed to the attention of the other party's legal department and primary point of contact. Notice will be deemed given: (a) when verified by written receipt if sent by personal courier, overnight courier, or mail; or (b) when verified by automated receipt or electronic logs if sent by facsimile or email.
15.2 Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an Affiliate but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void. Larky may use subcontractors to provide some of the SaaS Services and otherwise perform its obligations under this Agreement, provided that such subcontractors are bound by obligations of confidentiality and data protection that are no less protective than those in this Agreement.
15.3 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party's reasonable control.
15.4 No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
15.5 No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
15.6 Severability. If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision's essential purpose.
15.7 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
15.8 Equitable Relief. Nothing in this Agreement will limit either party's ability to seek equitable relief.
15.9 Governing Law. This Agreement is governed by Michigan law, excluding it's choice of law rules. FOR ANY DISPUTE RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN WASHTENAW COUNTY, MICHIGAN.
15.10 Amendments. Any amendments to this Agreement must be in writing and expressly state that is amending this Agreement.
15.11 Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination of this Agreement.
15.12 Counterparts. The parties may execute this Agreement in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.
15.13 Entire Agreement. This Agreement is the parties' entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. If there isa conflict between the documents that make up this Agreement, the documents will control in the following order: the Larky Order, the Agreement, and the Documentation.
16 Definitions
16.1 "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with such party.
16.2 “Authorized Users” means individuals who are authorized by Customer to use the SaaS Services pursuant to this Agreement or as otherwise defined, restricted or limited in an Larky Order for whom subscriptions to SaaS Services have been procured, and who have been supplied user identifications and passwords by Customer. Authorized Users may include: (a) Customers’ employees; and (b) Customers’ other personnel as specifically approved by Larky in writing to access the SaaS Services.
16.3 “Confidential Information” means information disclosed by a party to the other party under this agreement that is marked as confidential or would normally be considered confidential under the circumstances.
16.4 “Content” means any content provided through the SaaS Services (whether created by Larky or its third party licensors), and includes, but is not limited to geographically and other targeted marketing deliverables derived through the SaaS Services identified and/or described on an applicable Larky Order except to the extent such deliverables contain Customer Content.
16.5 “Control” means control over greater than fifty percent of the voting rights or equity interests of a party.
16.6 “Customer” means the entity that executes a Larky Order, either directly with Larky or through a Reseller, or is granted access to the SaaS Services through a Larky technology partner.
16.7 “Customer Application” means an internal or external software application or website that incorporates the SaaS Services in order to obtain and display Content in conjunction with Customer Content.
16.8 "Customer Content" means any content that Customer provides in its Customer Application, including data, images, video, or software. Customer Content does not include the Content.
16.9 "Documentation" means the Larky proprietary documentation in the form generally made available by Larky to its customers for use with the SaaS Services.
16.10 "Effective Date" has the date set forth in the Larky Order, or if no such date is provided on the Larky Order, then the date the Larky Order is last signed by Customer and Larky or the applicable Reseller.
16.11 "Intellectual Property Rights" means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
16.12 "License Term" means the period of time during which Customer is authorized to use the SaaS Services, and will be set forth in the Larky Order.
16.13 "Larky Order" means either an order form, quote, acknowledgement or other document subject to this Agreement and agreed to by Larky or a Reseller, as applicable, and Customer in writing to provide the SAAS Services to Customer.
16.14 "Overage" means any use of the SaaS Services in excess of the limitations set forth in the Larky Order.
16.15 "PII" or “Personally Identifiable Information” will have the meaning ascribed to it in applicable data protection laws.
16.16 “Reseller” means an authorized Larky reseller or services provider.
16.17 “SaaS Services” means Larky’s proprietary ‘Software-as-a-Service’ identified and/or described on an applicable Larky Order. Larky may make commercially reasonable changes to the SaaS Services from time to time.
16.18 “Support” means technical support and assistance provided by Larky to Customer through telephone support, on-line or Internet-based support, on-site support, or training related to the use of the SaaS Service as set forth in the Documentation or applicable Larky Order during the License Term.
16.19 "Term" means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of: (i) the end of the last License Term or (ii) the Agreement is terminated as set forth herein.
16.20 “Territory” means the geographical area that Larky authorizes Customer to use the SaaS Service in as set forth in an Larky Order.