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LEGAL

LAST UPDATED 01/06/2025

Terms and Conditions

‘SOFTWARE AS A SERVICE’ TERMS AND CONDITIONS

These ‘Software as a Service’ Terms and Conditions (“SaaS Terms”) between the Customer (as identified on and signatory to the Order Form) and Permitium, LLC (“Permitium”) along with all referenced schedules, terms and conditions and attachments (collectively, the “SaaS Agreement”) set forth the terms and conditions under which Permitium will provide the Customer with access to certain applications as set forth on the Order Form (“Application(s)”) and user documentation that Permitium makes generally available in hard copy or electronic form to its general customer base in conjunction with the subscription of such Applications (“Documentation“). The Applications and the Documentation will hereinafter collectively be referred to as the “Platform.” This Agreement is effective, and Customer agrees to its terms and conditions, as of the date (the “Effective Date”) that Customer accepts the Agreement by (1) clicking a box indicating Customer acceptance; (2) the effective date of the first executed Order Form referencing these SaaS Terms; or (3) Customer’s initial access to any Permitium Offering (as defined below) through any online provisioning, registration or order process.

Modifications to these SaaS Terms: Permitium may modify these SaaS Terms from time to time. Unless otherwise specified by Permitium, changes become effective for Customer upon renewal of the then-current Term or upon the effective date of a new Order Form after the updated version of these SaaS Terms goes into effect.

1. SUBSCRIPTION GRANT AND RIGHT OF USE

1.1. Subscription Grant. Subject to all limitations and restrictions contained herein and the Order Form, Permitium grants Customer a subscription, software as a service (‘SaaS’), nonexclusive, and nontransferable right to access and operate the object code form of Applications (and use its Documentation) as hosted by Permitium as described in the Order Form (“Use”) and solely to perform those functions described in the Documentation. For clarity, an “Application” means Permitium’s proprietary software that is specifically subscribed to Customer pursuant to the Order Form.

1.2. Application Specific Terms. Each Application to which the Customer subscribes may be subject to Application Specific Terms, as described in the Order Form. Customer is subject to and responsible for compliance with all Application Specific Terms for the respective Application to which the Customer subscribes.

1.3. Use. Customer will have a limited right to Use the Application solely in connection with the Customer listed on the Order Form by the Authorized Users and End Users (each as defined and set forth in Sections 1.4 and 5, respectively), and solely to perform the functions described in the Documentation. Customer shall not allow any website that is not fully owned by Customer to frame, syndicate, distribute, replicate, or copy any portion of Customer’s website that provides direct or indirect access to the Application and/or to the Platform. Unless otherwise expressly permitted in the Order Form and subject to Section 1.6, Customer shall not permit any other entities, divisions, subsidiaries, affiliated companies, or third parties to access the Platform.

1.4. Authorized Users. Unless otherwise specifically provided for in the Order Form, Customer’s internal access to the Application is limited to employees of Customer (the “Authorized Users”). Authorized Users have a limited right to Use the Application solely (i) in accordance with the Documentation, Section(s) 1.6 (General Restrictions) and 1.7 (Additional Restrictions), and the other use restrictions in these SaaS Terms, and (ii) for the internal use of the Customer.

1.5. End Users. Customer’s end customers and/or users who are the general public may also access a limited portal in the Application in connection with the Customer for a Use (collectively, the “End Users”) so as to provide inputs and to accept outputs from Customer; such access will be conditioned upon each End Users agreement and compliance with certain end user terms, conditions and privacy policies that will be presented to End Users from time to time (collectively the “EULA”).

1.6. General Restrictions. Customer shall not and shallnot permit any Authorized User or any other third party to: (i) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Application or any part thereof or otherwise attempt to discover any source code or modify the Application in any manner or form unless expressly allowed in writing; (ii) obtain unauthorized access to the Application (including, without limitation permitting, access to or use of the Application via another system or tool, the primary effect of which is to enable input or request or transactions by other than Authorized Users); (iii) use the Application in a manner that is in violation of any third party rights of privacy; (iv) issue or participate in any press release or other public statement related to these SaaS Terms or the Application without prior written consent of Permitium; (v) publish, post, upload or otherwise transmit Customer Data that contains any viruses, trojan horses, worms, time bombs, corrupted files or other computer programming routines that damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another.

1.7. Additional Restrictions. In no event will Customer, including without limitation its Authorized Users and End Users, disassemble, decompile, or reverse engineer the Application or Confidential Information (as defined herein) or permit others to do Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the Application from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Application by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Application’s operation and creating the original source code or any approximation thereof by, for example, studying the Application’s behavior in response to a variety of inputs; or (iv) performing any other activity related to the Application that could be construed to be reverse engineering, disassembling, or decompiling. To the extent any such activity may be permitted pursuant to written agreement, the results thereof will be deemed Confidential Information subject to the requirements of these SaaS Terms. Customer may use Permitium’s Confidential Information solely in connection with the Application and pursuant to the terms of these SaaS Terms.

1.8. Users. Customer is fully liable for the acts and omissions of (i) Authorized Users, (ii) End Users, and (iii) subject to Section 5 (Confidentiality), third-party contractors of Customer who do not compete with Permitium (“Permitted Contractors”) under these SaaS Terms and applicable Order Form. If Customer becomes aware of any violation of Customer’s obligations under the SaaS Agreement by any Permitted Contractor, Authorized User or End User, Customer will immediately terminate such person’s access to the Platform.

1.9. Customer License Grant. Customer grants to Permitium a non-exclusive, royalty-free license to access, use, reproduce, modify, perform, display and distribute Customer Data as is reasonable or necessary for Permitium to perform or provide the Customer retains ownership of all Customer Data (subject to the rights granted in this Section and in the Aggregate Data provision below).

1.10. Exclusivity. Unless otherwise specifically provided for in the Order Form, Customer agrees during the Term indicated in the Order Form to exclusively use only the subscription and/or transaction services subscribed to in the Order Form from Permitium and not use any competing subscription and/or transactions services.

2. PAYMENT

2.1. Fees. Customer shall pay all Fees, expenses, and other financial obligations set forth in the applicable Order Form and/or these SaaS Terms. Unless otherwise provided in the Order Form, all Fees are to be paid to Permitium within thirty (30) days of the date of Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. If Customer has set up a direct debit, Permitium will not debit Customer’s designated account before seven (7) days have elapsed from the date of the invoice. If Customer is delinquent on a payment of Fees for fifteen (15) days or more, Permitium may suspend access to the Application and/or the Platform. Complaints concerning invoices must be made in writing within thirty (30) days from the date on the invoice. Invoices will be sent by electronic delivery unless requested otherwise by Customer, in which case additional Fees will apply. Customer agrees that End Users who do not pay Fees in accordance with the EULA will not be permitted to access the Platform.

2.2. Taxes. All amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse Permitium and hold Permitium harmless for all sales, use, VAT, excise, property, or other taxes or levies which Permitium is required to collect or remit to applicable tax authorities. This provision does not apply to any taxes for which Customer is exempt, provided Customer has furnished Permitium with a valid tax exemption certificate.

2.3. Revenue Share. If a ”Revenue Share” has been expressly indicated in the Order Form, then the indicated Revenue Share amount, per transaction, will be paid to Customer. Customer represents and warrants that the Revenue Share, and payment thereof, complies with all applicable laws. Permitium shall pay the Revenue Share pursuant to Section 2.5 (Customer Payments).

2.4. Service Fee.  As specified in the Order Form, Permitium may charge a service fee for each transaction of the End User (“Service Fee“), regardless of the method of payment, along with applicable credit or debit card fees for the use of Permitium transaction services. Payment of the Service Fee shall be through the use of a valid payment method then accepted by Permitium, which may include, without limitation, Visa, MasterCard, Discover Card, American Express, JCB, major debit cards, and cash or check. Where the Service Fee is not paid by the End User for a transaction for any reason, Permitium will collect the Service Fee for the transaction from Customer, including without limitation, from other funds collected by Permitium for Customer. The Service Fee is non-refundable. Customer agrees to at all times accurately convey to End Users the then current Service Fee.

2.5. Customer Payments. Where applicable,Permitium will collect payments and agrees to deliver to Customer, when funds are owed by Permitium to Customer, a monthly statement by the 25th of each following month which will be itemized for every transaction submitted the previous month along with an ACH bank transfer for the total aggregate amount owed to Customer.

2.6. Fee Changes. Permitium may from time to time make changes to Fees, including recurring Fees, Service Fees, or minimum commitments. Unless otherwise specified by Permitium, changes become effective for Customer upon renewal of the then-current Term or upon the effective date of a new Order Form following the date the Fee change goes into effect. Permitium will use reasonable efforts to notify Customer of the changes in advance through communications via Customer’s Account, email or other means. Customer may be required to accept or otherwise agree to the Fee change before renewing a Term or upon the effective date of a new Order Form, and in any event, continued use of any Permitium Offering after the Fee change goes into effect will constitute Customer’s acceptance of such update. If Customer does not agree to the Fee change, Customer can reject the change by cancelling the SaaS Agreement prior to the Fee change going into effect.

3. HOSTING AND SECURITY

3.1. Service Availability. Permitium will use reasonable efforts to achieve a Monthly Uptime Percentage of at least 99.5% for any calendar month. “Monthly Uptime Percentage” means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month. “Downtime” means the time in which any service is not capable of being accessed or used by the Customer, as monitored by Permitium.

3.2. Exclusion from Downtime. The following are not counted as Downtime for the purpose of calculating Monthly Uptime Percentage: (i) Service unavailability caused by scheduled maintenance of the platform used to provide the applicable service (Permitium will endeavor to provide seven (7) days’ advance notice of service-affecting scheduled maintenance); or (ii) Service unavailability caused by events outside of the direct control of Permitium or its subcontractor(s), including any force majeure event, the failure or unavailability of Customer systems, the Internet, and the failure of any other technology or equipment used to connect to or access the service.

3.3. Support Services. Upon payment of the relevant Fees on the applicable Order Form in advance, Customer may receive certain support services for the Application as specified in the applicable Order Form and subject to any additional terms stated therein.

3.4. Security. All confidential documents and information provided to Permitium by or on behalf of Customer shall be stored and maintained by Permitium with commercially reasonable care for the types of records being stored and maintained. Online access to records or information shall be password protected and provided with commercially reasonable care for the types of records being stored and maintained.  Without limiting the foregoing, Permitium specifically agrees to use commercially reasonable efforts to ensure that: (i) all servers, computers, and computer equipment used by Permitium to provide services pursuant to the SaaS Agreement will be maintained in good working order in compliance with generally accepted industry standards in light of the confidential nature of the documents in question and shall be located in a safe, controlled, and environmentally stable environment (including moisture and temperature controls) and reasonably protected against fires, hurricanes, flooding, or similar occurrences; (ii) all websites, files transfer protocols (FTPs), and any other online electronic system used by Permitium to provide services pursuant to the SaaS Agreement will be protected from security breaches by commercially reasonable firewalls and other intrusion detections systems and antivirus software; (iii) Permitium will have technical controls in place designed to ensure the availability of data and the security and confidentiality of Confidential Information; and (iv) all information provided by Permitium pursuant to the SaaS Agreement shall be encrypted while in transit over an open network.

4. OWNERSHIP

4.1. Reservation of Rights. By signing the Order Form, Customer irrevocably acknowledges that, subject to the rights granted herein, Customer has no ownership interest in the Platform or Permitium materials provided to Permitium will own all right, title, and interest in such Platform and Permitium materials, subject to any limitations associated with intellectual property rights of third parties. Permitium reserves all rights not specifically granted herein.

4.2. Marks and Publicity. Permitium and Customer trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), are the sole and exclusive property of the respective owning party, which owns all right, title and interest therein. Permitium may: (i) use the Customer’s name and/or logo within product literature, press release(s), social media, and other marketing materials; (ii) quote the Customer’s statements in one or more press releases; (iii) upon Permitium’s request, Customer shall cooperate with the creation and publication of a case study concerning Customer’s use of the Application; and/or (iv) make such other use of the Customer’s name and/or logo as may be agreed between the parties. Additionally, Permitium may include Customer’s name and/or logo within its list of customers for general promotional purposes. Permitium shall comply with Customer’s trademark use guidelines as such are communicated to Permitium in writing and Permitium shall use the Customer’s Marks in a manner which is consistent with industry Neither party grants to the other any title, interest or other right in any Marks except as provided in this Section.

5. CONFIDENTIALITY

5.1. Definition.Confidential Information” includes all information marked pursuant to this Section and disclosed by either party, before or after the Service Start Date (as identified on the Order Form), and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information. For clarity, the term ‘Confidential Information’ does not include any personally identifiable information.

5.2. Confidentiality of Platform. All Confidential Information in tangible form will be marked as “Confidential” or the like or, if intangible (e.g., orally disclosed), will be designated as being confidential at the time of disclosure and will be confirmed as such in writing within thirty (30) days of the initial disclosure. Notwithstanding the foregoing, the following is deemed Permitium Confidential Information with or without such marking or written confirmation: (i) the Platform (including, but not limited to the architecture and code base) and other related materials that may be furnished by Permitium; (ii) any SOC 2 reports or results, (iii) the oral and visual information relating to the Platform; and (iv) the pricing in the SaaS Agreement.

5.3. Exceptions. Without granting any right or license, the obligations of the parties hereunder will not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the other party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality; (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party or (v) aggregate data collected or generated by Permitium or on behalf of Permitium regarding Permitium Offerings that does not contain any personal information and other Customer-specific information. In addition, neither party will be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the disclosing party so that the disclosing party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate fully in seeking such protective order and in engaging in such other.

5.4. Ownership of Confidential Information. Nothing in these SaaS Terms will be construed to convey any title or ownership rights to the Platform or other Confidential Information to Customer or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to Permitium’s Confidential Information. Neither party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in these SaaS Terms. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information.

5.5. Non-Disclosure. Each party agrees at all times to use all reasonable efforts, but in any case, no less than the efforts that each party uses in the protection of its own Confidential Information of like value, to protect Confidential Information belonging to the other party. Each party agrees to restrict access to the other party’s Confidential Information only to those employees or Subcontractors (as defined below) who: (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.

5.6. Suggestions/Improvements to Platform. Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Platform or other Permitium materials provided to Customer will be owned by Permitium, and Customer hereby agrees to assign any such rights to Permitium. Nothing in these SaaS Terms will preclude Permitium from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Permitium in the performance of services hereunder.

5.7. Use of Aggregate Data. Notwithstanding anything to the contrary set forth herein, Permitium may collect and use data regarding the use and performance of the Platform in anonymized and aggregated form, to analyze and improve the Platform and for Platform support, and general benchmarking data and industry reports, provided that any user data is aggregated and anonymized such that no personally identifying information of any individual is revealed. As between Permitium and Customer, all right, title and interest in the aggregated data, aggregated statistics as set forth in Section 5.7. herein, and all intellectual property rights therein, belong to and are retained solely by Permitium.

6. WARRANTY

6.1. No Malicious Code. To the knowledge of Permitium, the Application does not contain any malicious code, program, or other internal component (e.g. computer virus, computer worm, computer time bomb, or similar component), which could damage, destroy, or alter the Application, or which could reveal, damage, destroy, or alter any data or other information accessed through or processed by the Application in any manner. This warranty will be considered part of and covered under the provisions of these SaaS Terms. Customer must: (i) notify Permitium promptly in writing of any nonconformance under this warranty; (ii) provide Permitium with reasonable opportunity to remedy any nonconformance under the provisions of these SaaS Terms; and (iii) provide reasonable assistance in identifying and remedying any nonconformance.

6.2. Authorized Representative. Customer and Permitium warrant that each has the right to enter into these SaaS Terms and that these SaaS Terms and the Order Form executed hereunder will be executed by an authorized representative of each entity.

6.3. Services Warranty. Permitium warrants that: (a) the Service will operate in substantial conformity with the applicable Documentation; and (b) Professional Services and Deliverables will be provided in a professional and workmanlike manner and substantially in accordance with the specifications in the applicable Order Form and or the relevant SOW.

6.4. Disclaimer of Warranties. ANY AND ALL OF SOFTWARE, SERVICES, CONFIDENTIAL INFORMATION AND ANY OTHER TECHNOLOGY OR MATERIALS PROVIDED BY PERMITIUM TO THE CUSTOMER ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 6 OF THESE SAAS TERMS. PERMITIUM MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. NEITHER PERMITIUM (NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, SUPPLIERS OR LICENSORS) WARRANTS OR REPRESENTS THAT THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.

6.5. Modifications. Notwithstanding anything to the contrary in this Section 6, any and all warranties under these SaaS Terms will not apply if non-conformance was caused by: (i) Customer’s misuse of the Service or Deliverables; (ii) modifications to the Service or Deliverables by Customer or any third party; or (iii) any service or hardware of Customer or any third parties used by Customer in connection with the Service or Deliverables. For Professional Services and Deliverables, the warranty will not apply unless Customer provides notice of a claim within thirty (30) days after the expiration of the applicable SOW.

7. PROFESSEIONAL SERVICES

7.1. Provision of Professional Services. Permitium will perform Professional Services for Customer as set forth in each applicable SOW subject to the terms and conditions of these SaaS Terms. Any additional scope or activities that extend beyond the Professional Services will require an additional SOW. For the avoidance of doubt, the SOW may contain terms and conditions specific to the applicable Professional Services ordered (via a SOW). Permitium may immediately cease performing Professional Services, without liability, if a SOW expires and is not immediately extended or replaced with a valid SOW.

7.2. Assistance. Customer acknowledges that timely access to applicable Customer Materials, resources, personnel, equipment or facilities is necessary for the provision of Professional Services. Customer agrees to provide such access and to reasonably cooperate with Permitium during a Professional Services project. Permitium will have no liability for any delay or deficiency to the extent resulting from Customer’s breach of its obligation under Section 7.

7.3. Customer Materials. Customer hereby grants Permitium a limited right to use any Customer Material for the purpose of providing Professional Services to Customer. Customer will retain any of its rights (including all intellectual property rights) in and to the Customer Materials. Customer Materials comprising Confidential Information will be subject to Section 5 (Confidentiality). Customer warrants that Customer has and will have sufficient rights in the Customer Materials to grant the rights to Permitium under these SaaS Terms and that the Customer Materials will not violate any third-party rights.

7.4. Access to Customer Data under a SOW. With respect to access to any Customer Data under an SOW, Customer is solely responsible for ensuring that both the duration and scope of access is strictly limited to the access required under the specific SOW. Customer agrees that it will not grant Permitium access to Customer Data unless specifically required in an SOW, and that Customer will grant any such access only during the term of the applicable Professional Services project. To the extent access to Customer Data is granted, unless otherwise specified in an SOW, Customer will provide Permitium with: (i) secure Customer workstations and networks for accessing Customer Data that are monitored, managed, configured, supported and maintained by Customer; and (ii) user ID/passwords to each Permitium resource that requires access to Customer Data, and these credentials will be solely managed by Customer.

7.5. License to Deliverables. The Professional Services Permitium performs and the resulting Deliverables will not be considered works made for hire and will be part of Permitium’s Technology which is exclusively owned by Permitium and no ownership rights thereto will accrue in any manner to Customer. Customer hereby agrees, upon written request from Permitium, to assign any rights of Customer in such Deliverables to Permitium. Subject to the terms and conditions of these SaaS Terms (including Sections 1.6 (General Restrictions) and 1.7 (Additional Restrictions)), Permitium hereby grants Customer a limited, non-exclusive, royalty-free, non-transferable worldwide license to use the Deliverables internally solely in connection with such Customer’s use of the Service during the period in which such Customer has valid access to the Service. The parties may mutually agree to SOWs with additional terms and restrictions related to the use of Deliverables provided as part of that project, in which case those terms and restrictions will also apply for purposes of those deliverables only.

7.6. Change Orders; Other Terms. Customer may submit written requests to Permitium to change the scope of Professional Services under an existing SOW. Permitium will promptly notify Customer if it believes that the requested change requires an adjustment to the Fees, schedule, assumptions or scope of performance of the Professional Services. Neither party is bound by changes to an SOW unless the parties have entered into a Change Order approved with respect thereto and only upon the mutual execution of a Change Order detailing the changes in scope, schedule, resource, fees, and/or budget to the SOW. Permitium may use subcontractors to deliver Professional Services but will remain responsible for the performance of those Professional Services under the applicable terms and conditions of these SaaS Terms. For clarity, Customer will be responsible for any consumption and other Fees for the Service that are generated as part of the Professional Service.

7.7. Order of Precedence. Each SOW shall be governed by the terms and conditions of these SaaS Terms and the applicable Order Form; however, in the event of any conflict between these SaaS Terms and a SOW, the provisions of the SOW shall prevail.

7.8. Third Party Rights. Customer acknowledges that in the event Permitium provides Professional Services pertaining to any third-party products (including software, hardware, equipment, or any other material), all rights in such third-party products (“Third Party Rights”) are retained by the respective third party. Customer shall be required to obtain any Third Party Rights from the respective third party directly and any rights in the Professional Services related to such Third Party Rights will be subject to Customer’s agreement with the respective third party.

7.9. Support. Permitium shall have no support and enhancement obligations related to any Professional Services except as otherwise specified in a SOW.

8. INDEMNIFICATION

8.1. Permitium Indemnity. Permitium agrees to defend, indemnify, and hold harmless Customer, its officers, directors, employees, and agents from and against any and all damages, costs, liabilities, and expenses (including reasonable attorneys’ fees) arising out of any third-party claim to the extent such claim is caused by: (i) An allegation that the Application, as provided by Permitium to Customer, infringes or misappropriates any United States patent, copyright, or trade secret; (ii) Permitium’s material breach of any of its obligations set forth in this Agreement; or (iii) Any gross negligence or willful misconduct of Permitium or its employees, contractors, or agents in connection with the performance of this Agreement. Permitium will pay those damages and costs finally awarded against Customer or agreed to in settlement of any such claim, provided that Permitium has approved such settlement in writing. Customer must: (i) promptly notify Permitium of any claim under this Section; (ii) allow Permitium sole control of the defense or settlement of such claim, provided that Permitium shall not settle any claim in a manner that imposes a material obligation or liability on Customer without Customer’s prior written consent (such consent not to be unreasonably withheld); and (iii) reasonably cooperate with Permitium, at Permitium’s expense, in the defense or settlement of such claim. Customer retains the right to participate in the defense of any claim with counsel of its choosing, at its own expense.

8.2. No Liability. Permitium will have no liability for any claim of infringement based on: (i) Platform which has been modified by parties other than Permitium where the infringement claim would not have occurred in the absence of such modification; (ii) Customer’s use of the Platform in conjunction with data or third party software where use with such data or third party software gave rise to the infringement claim; or (iii) Customer’s use of the Platform outside the permitted scope of these SaaS Terms.

8.3 Remedies. Should the Platform become, or in Permitium’s opinion is likely to become, the subject of a claim of infringement, Permitium may, at its option, (i) obtain the right for Customer to continue using the Platform, (ii) replace or modify the Platform so it is no longer infringing or reduces the likelihood that it will be determined to be infringing, or (iii) if neither of the foregoing options is commercially reasonable, terminate the access and Use of the Platform. Upon such termination, Customer shall cease accessing the Platform and Permitium will refund to Customer, as Customer’s sole remedy for such subscription termination, the Fees paid by Customer for the terminated license for the past twelve (12) months. THIS SECTION 8 STATES THE ENTIRE LIABILITY OF PERMITIUM WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE APPLICATION.

8.4. Customer Indemnity. Customer agrees to defend,  indemnify, and hold Permitium and its officers, directors, employees, consultants, and agents harmless from and against any and all damages, costs, liabilities, expenses (including, without limitation, reasonable attorneys’ fees), and settlement amounts incurred in connection with any claim arising from or relating to Customer’s: (i) breach of any of its obligations set forth in Section 11 (Customer Obligations); (ii) Customer’s gross negligence or willful misconduct; (iii) actual or alleged use of the Application in violation of these SaaS Terms or applicable law by Customer or any Authorized Users, End Users or Permitted Contractors; (iv) any actual or alleged infringement or misappropriation of third party intellectual property rights arising from data provided to Permitium by the Customer or otherwise inputted into the Application, whether by the Customer, an Authorized User, End User or otherwise including Customer Data; and/or (v) any claim of any kind by an End User except to the extent that such claim results from Permitium’s breach of the EULA, (vi) any violation by Customer or its Authorized Users, of any terms, conditions, agreements or policies of any third party Permitium.

8.5. Indemnification Procedures.  Each indemnifying party’s obligations as set forth in this Section are subject to the other party: (i) giving the indemnifying party prompt written notice of any such claim or the possibility thereof; (ii) giving the indemnifying party sole control over the defense and settlement of any such claim; and (iii) providing full cooperation in good faith in the defense of any such claim.

9. LIMITATION OF LIABILITY

9.1. Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PERMITIUM BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), ATTORNEYS FEES AND COSTS, OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SERVICES WHICH GAVE RISE TO SUCH DAMAGES.

9.2. Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PERMITIUM BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES AND COSTS, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL.

9.3. THE FOREGOING LIMITATIONS APPLY EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

10. TERM AND TERMINATION

10.1. Term of Agreement. The term of these SaaS Terms is effective as of the Effective Date and will remain in effect until terminated in accordance with its terms. If there is no Order Form currently in effect, either party may terminate these SaaS Terms upon written notice to the other party. Each Order Form will terminate upon expiration of the applicable Term, unless expressly stated otherwise therein or in these SaaS Terms.

10.2. Term of Subscription and Transaction Services and Renewals. The Term of each Permitium Offering shall be as specified in the applicable Order Form. Except as otherwise specified in the Order Form, each Permitium Offering will automatically renew for additional periods equal to the applicable expiring Term or one year (whichever is shorter) (“Renewal Term”), unless either Party gives the other notice of non-renewal at least sixty (60) days before the end of the relevant Term.

10.3. Termination by Permitium. These SaaS Terms and any rights created hereunder may be terminated by Permitium: (i) if Customer fails to make any payments due hereunder within fifteen (15) days of the due date; (ii) on thirty (30) days written notice to Customer if Customer fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (iii) Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.

10.4. Termination by Customer.  These SaaS Terms may be terminated by Customer on providing ninety (90) days written notice to Permitium if Permitium fails to perform any material obligation required of it hereunder, and such failure is not cured within ninety (90) days from Permitium’s receipt of Customer’s notice or a longer period if Permitium is working diligently towards a cure.

10.5. Effect of Termination. Upon termination of these SaaS Terms, Customer shall no longer access the Platform and Customer shall not circumvent any security mechanisms contained therein.

10.6. Other Remedies. Termination of SaaS Terms will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under these SaaS Terms.

10.7. Suspension of Permitium Offerings. In addition to any of its other rights or remedies (including without limitation, any termination rights) set forth in these SaaS Terms, Permitium reserves the right to suspend the provision of the Permitium Offerings: (a) if any Fee is thirty (30) days or more overdue; (b) if Permitium deems such suspension necessary as a result of Customer’s breach of Sections 1.6 (General Restrictions), 1.7 (Additional Restrictions), or Section 11 (Customer Obligations); (c) if Permitium reasonably determines suspension is necessary to avoid material harm to Permitium or its customers, including if the Platform is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Permitium’s control; or (d) as required by law or at the request of governmental entities.

11. CUSTOMER OBLIGATIONS

11.1 Customer agrees that no employees of Permitium will be required to individually sign any agreement in order to perform any services hereunder including, but not limited to, access agreements, security agreements, facilities agreements or individual confidentiality agreements.

11.2. Customer agrees to comply with all applicable laws, regulations, and ordinances relating to these SaaS Terms. Customer shall ensure that each website for which the Application is engaged contains or is linked to a privacy policy that governs its data collection and use practices.

11.3. The Customer shall be obliged to inform its Authorized Users, End Users and Permitted Contractors before the beginning of use of the Platform about the rights and obligations set forth in these SaaS Terms. The Customer will be liable for any violation of obligations by its Authorized Users, End Users, Permitted Contractors, or by other third parties who violate obligations within the Customer’s control.

11.4. The Customer shall be obliged to keep the login names and the passwords required for the use of the Application confidential, to keep them in a safe place, and to protect them against unauthorized access by third parties with appropriate precautions, and to instruct its Authorized Users to observe copyright regulations. Personal access data must be changed at regular intervals.

11.5. Before entering its data and information, the Customer shall be obliged to check the same for viruses or other harmful components and to use state of the art anti-virus programs for this purpose. In addition, the Customer itself shall be responsible for the entry and the maintenance of its data.

11.6. Permitium has the right (but not the obligation) to suspend access to the Application or remove any data or content transmitted via the Application without liability (i) if Permitium reasonably believes that the Application is being used in violation of these SaaS Terms or applicable law, (ii) if requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that Permitium shall use commercially reasonable efforts to notify Customer prior to suspending the access to the Application as permitted under these SaaS Terms, or (iii) as otherwise specified in these SaaS Terms. Information on Permitium’s servers may be unavailable to Customer during a suspension of access to the Platform. Permitium will use commercially reasonable efforts to give Customer at least twelve (12) hours’ notice of a suspension unless Permitium determines in its commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect Permitium or its customers.

11.7. During the term of these SaaS Terms and for a period of two (2) years following any termination or expiration of these SaaS Terms, Customer shall maintain written records related to the use of the Platform by Customer, as reasonably necessary to verify compliance with the usage terms of these SaaS Terms. Such records will be kept in accordance with Customer’s records retention policy and records retention schedule applicable thereto. Not more than once annually, and with notice of not less than 20 business days, Permitium may (or may engage a third party, which will be subject to a confidentiality obligation), to verify compliance (“Compliance Review“). The Compliance Review will take place during normal business hours and in a manner that does not interfere unreasonably with Customer’s operations. At Permitium’s option, Permitium may request, and Customer hereby agrees to complete, a self-audit questionnaire relating to Customer’s usage under the rights granted by Supplier to Customer in the SaaS Terms. If the Compliance Review or self-audit reveals excess use of the Platform, Customer agrees to compensate Permitium for such usage. All costs of the Compliance Review will be borne by Permitium, unless excess usage of 5% or more is found (“Material Excess Usage“). If Material Excess Usage is found during the Compliance Review, Customer shall reimburse Permitium for the actual costs associated with performance of the Compliance Review. Permitium and any third party involved in the Compliance Review will use the information obtained in compliance review only to enforce Permitium’s rights and to determine Customer’s compliance with the terms of the rights granted in these SaaS Terms. By invoking the rights and procedures described in this Section, Permitium does not waive its rights to enforce other terms of these SaaS Terms, including, but not limited to, any intellectual property rights by other means as permitted by law.

11.8. All End Users who access the Platform and request access to records will require verification and approval from Customer (the “Records Access Permission”). Records Access Permission requests will be communicated to Customer, from the End User by way of the Platform. It is Customer’s sole responsibility to ensure the legitimacy, propriety and legality of the request and to properly approve or reject the providing of access of records to the End User. Customer will indemnify, defend and hold Permitium harmless against any claim of any kind related to the improper disclosure documents unless such disclosure was due solely to the gross negligence or willful misconduct of Permitium.

12. MISCELLANEOUS

12.1. Assignment. Customer may not assign these SaaS Terms or otherwise transfer any right created hereunder whether by operation of law, change of control, transfer of all or substantially all of its assets, or in any other manner, without the prior written consent of Permitium. Any purported assignment of these SaaS Terms, or any rights in violation of this Section will be deemed null and void. Permitium may assign these SaaS Terms, sub-contract or otherwise transfer any right or obligation under these SaaS Terms to a third party without the Customer’s prior written consent.

12.2. Affiliates and Third Parties. At the direction and sole discretion of Permitium, affiliates of Permitium (the “Permitium Affiliates”) may perform certain tasks related to Permitium’s obligations and rights under the Order Form and the SaaS Agreement, including, but not limited to, invoicing, payment, technical support, project management and/or sales support. Customer hereby consents to Permitium Affiliates’ role. Customer further agrees and acknowledges that Permitium and Customer are the only parties to the Order Form and the SaaS Agreement, and that any action taken by Permitium Affiliates in connection with the performance of Permitium’s obligations under the Order Form and the SaaS Agreement will not give rise to any cause of action against Permitium Affiliates, regardless of the theory of recovery. Permitium shall at all times retain full responsibility for Permitium Affiliates’ compliance with the applicable terms and conditions of the Order Form and the SaaS Agreement. Permitium will have the right to use third parties, including offshore entities who employ foreign nationals, as well as employees and contractors of Permitium Affiliates and subsidiaries, who may also be foreign nationals (collectively, “Subcontractors”) in the performance of its obligations hereunder and, for purposes of these SaaS Terms, all references to Permitium or its employees will be deemed to include such Subcontractors. Permitium will have the right to disclose Customer Confidential Information to such third parties provided such third parties are subject to confidentiality obligations similar to those between Permitium and Customer.

12.3. Export Restrictions and Technical Data. Customer may not (i) remove or export from the United States or allow the export or re-export of the Application or anything related thereto, or any direct product thereof, or (ii) use the Application for uploading or downloading of any technology, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  Customer shall not provide to Permitium any technical data as that term is defined in the International Traffic in Arms Regulations (“ITAR”) at 22 CFR 120.10. Customer shall certify that all information provided to Permitium has been reviewed and scrubbed so that all technical data and other sensitive information relevant to Customer’s ITAR regulated project has been removed and the information provided is only relevant to bug reports on Permitium products.

12.4. Compliance with Laws. Both parties agree to comply with all applicable laws, regulations, and ordinances relating to such party’s performance under these SaaS Terms.

12.5. Survival. The provisions set forth in Sections 2 (Payment), 4 (Ownership), 5 (Confidentiality), 6.4 (Disclaimer of Warranty), 8 (Indemnification), 9 (Limitation of Liability), 10 (Term and Termination), 11 (Customer Obligations), 12 (Miscellaneous), and 13 (Definitions) of these SaaS Terms will survive termination or expiration of these SaaS Terms and any applicable license hereunder.

12.6. Notices. Any notice required under these SaaS Terms shall be given in writing and will be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the Order Form or to such other address as the parties may designate in writing. Any notice of material breach will clearly define the breach including the specific contractual obligation that has been breached.

12.7. Force Majeure. Permitium will not be liable to Customer for any delay or failure of Permitium to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Permitium. Such causes will include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder.

12.8. Restricted Rights. Use of the Platform by or for the United States Government is conditioned upon the Government agreeing that the Platform is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. Customer shall be responsible for assuring that this provision is included in all agreements with the United States Government and that the Platform, when accessed by the Government, is correctly marked as required by applicable Government regulations governing such Restricted Rights as of such access.

12.9. Privacy. Obligations with respect to personally identifiable information (if any) are set forth in the ‘Privacy Policy’ located at https://www.permitium.com/legal/privacy.

12.10. Entire Agreement. These SaaS Terms together with the documents referenced herein constitute the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect to the subject matter contained herein. All terms respecting the subject matter of the SaaS Terms and contained in purchase orders, invoices, acknowledgments, shipping instructions, or other forms exchanged between the parties will be void and of no effect.

12.11. Modifications. The parties agree that these SaaS Terms cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.

12.12. Non-solicitation. During the term of these SaaS Terms and for a period of two (2) years thereafter, Customer agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Subcontractor of Permitium without the prior written consent of Permitium. Customer further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or Subcontractor of Permitium for a period of one (1) year from such former employee’s or Subcontractor’s last date of service with Permitium. Violation of this provision will entitle Permitium to liquidated damages against Customer equal to two hundred percent (200%) of the solicited person’s gross annual compensation.

12.13. Headings. Headings are for reference purposes only, have no substantive effect, and will not enter into the interpretation hereof.

12.14. No Waiver.  No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.

12.15. Severability and Reformation. Each provision of these SaaS Terms is a separately enforceable provision. If any provision of these SaaS Terms is determined to be or becomes unenforceable or illegal, such provision will be reformed to the minimum extent necessary in order for these SaaS Terms to remain in effect in accordance with its terms as modified by such reformation.

12.16. Independent Contractor. Permitium is an independent contractor and nothing in these SaaS Terms will be deemed to make Permitium an agent, employee, partner, or joint venturer of Customer. Neither party will have authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.

12.17. Governing Law; Venue. The laws of the State of North Carolina, USA govern the interpretation of these SaaS Terms, regardless of conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (1980) and the Uniform Computer Information Transactions Act (UCITA) are hereby excluded in their entirety from application to these SaaS Terms. The parties agree that the federal and state courts located in Mecklenburg County, North Carolina, USA will have exclusive jurisdiction for any dispute arising under, out of, or relating to these SaaS Terms. Mediation will be held in Mecklenburg County, North Carolina, USA.

12.18. Dispute Resolution.

Negotiations. Where there is a dispute, controversy, or claim arising under, out of, or relating to these SaaS Terms, the aggrieved party shall notify the other party in writing of the nature of such dispute with as much detail as possible about the alleged deficient performance of the other party. A representative from senior management of each of the parties shall meet in person or communicate by video conference or telephone within five (5) business days of the date of the written notification in order to reach an agreement about the nature of the alleged deficiency and the corrective action to be taken by the respective parties.

Mediation. Any dispute, controversy, or claim arising under, out of, or relating to these SaaS Terms and any subsequent amendments of these SaaS Terms, including,  without  limitation,  its   formation,   validity, binding effect, interpretation, performance, breach, or termination, as well as non-contractual claims, and any claims with respect to the validity of this mediation agreement (hereinafter the “Dispute”), shall be submitted to mediation in accordance with the then- current WIPO Mediation Rules. The language to be used in the mediation will be English.

Opportunity to Cure. Notwithstanding anything contained hereunder, Customer agrees and acknowledges that no dispute resolution or litigation will be pursued by Customer for any breach of these SaaS Terms until and unless Permitium has had an opportunity to cure any alleged breach. Customer agrees to provide Permitium with a detailed description of any alleged failure and a description of the steps that Customer understands must be taken by Permitium to resolve the failure. Permitium shall have thirty (30) days from Permitium’s receipt of Customer’s notice to complete the cure.

Injunctive Relief. The parties agree that it will not be inconsistent with their duty to mediate to seek injunctive or other interim relief from a competent court. The parties, in addition to all other available remedies, shall each have the right to initiate an action in any court of competent jurisdiction in order to request injunctive or other interim relief with respect to a violation of intellectual property rights or confidentiality obligations. The choice of venue does not prevent a party from seeking injunctive or any interim relief in any appropriate jurisdiction.

12.19. Cooperative Procurement. As additional consideration for this SaaS Agreement, and pursuant to State and local laws and procurement rules, Permitium agrees to extend an option to purchase products or services covered under an Order Form under the same terms and conditions to other contracting agencies. Any such purchases shall be between Permitium and the participating agency and shall not impact Permitium’s obligations to Customer under this SaaS Agreement. Each contracting agency shall execute its own agreement with Permitium. Any estimated purchase volumes, user counts, subscription fees, minimum commitments, or professional services fees listed on an Order Form do not include other public agencies and Customer makes no guarantee as to their participation.

13. CERTAIN DEFINITIONS

“Account” means Customer’s account in the applicable Service in which Customer stores and processes Customer Data.

“Application Specific Terms” means the separate rules, descriptions, software license agreements, acceptable use policies, pricing, and terms and conditions specific to certain Applications detailed in the Order Form.

“Change Order” means change order or amendment to an SOW that is agreed to and signed in writing by both parties with respect to any Professional Services to be performed hereunder.

“Customer Software” is any software as a service (including the Platform) made available to Customer by Permitium for installation on Authorized Users or End Users computers to be used in connection with the applicable Service.

“Customer Data” means any data, data files, documents, or other information of any type that are developed or acquired by Customer independently from Permitium or the Application, and that are uploaded or otherwise transmitted by or on behalf of Customer for storage, processing, or use in connection with the Service.

“Customer Materials” means any materials provided to in connection with Professional Services.

“Deliverables” means the guides, code, services or other deliverables that Permitium provides to Customer in connection with Professional Services described in each applicable SOW attached to the Order Form during the Term.

“Fees” means the any fees payable by Customer to Permitium for the applicable Permitium Offerings described in the Order Form and or SOW. For Professional Services, the applicable Fees are as set forth in the fee schedule in the relevant SOW. Unless otherwise specifically stated in the SOW, all Professional Services are provided on a time and materials basis, and the “Fees” do not include expenses; Customer shall reimburse Permitium for all reasonable travel, food, lodging, and other out-of-pocket expenses incurred in the course of providing Professional Services.

Order Form” means the Permitium ordering document (and/or SOW, if applicable) governed by this Agreement that is signed by Permitium and Customer and specifies the Permitium Offerings procured by the Customer.

“Permitium Offering(s)” means the Service, Professional Services (Including Deliverables), and any support and other ancillary subscription or transaction service provided by Permitium described in the Order Form or SOW.

“Permitium Technology” means the Service, Documentation, Customer Software, Deliverables, and any and all related and underlying technology documentation in any Permitium Offerings; and any derivative works, modifications, or improvements of any of the foregoing.

“Professional Services” means the consulting, configuration or other professional services provided by Permitium to Customer under an Order Form or SOW.

“Service” means the generally available software-as-a-service offering hosted by or on behalf of Permitium and ordered by or for Customer as set forth in an Order Form.

“SOW” or “Statement of Work” means a statement of work mutually agreed by Customer and Permitium for the provision of Professional Services and that is governed under these SaaS Terms.

“Term” means the period of time during which Customer is authorized to access the relevant Permitium Offering(s), as specified in the applicable Order Form.

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