SAAS SERVICE AGREEMENT
This SaaS Services Agreement ("agreement") is held on the date of commencement of the subscription ("Effective Date", equal to the date of the first invoice) between Goldfish Ltda, a limited liability company, with registered office at Apoquindo Av. 6410, off 605, Santiago, Chile ("Company“), and the customer, (“Customer“). This agreement includes and incorporates the Order Form above, as well as the attached Terms and Conditions and contains, among other things, disclaimers of warranty, limitations of liability and limitations of use.. No different terms of any related purchase order or similar form, even if signed by the parties after the date hereof, shall have any force or effect.
GENERAL CONDITIONS
1. SAAS SERVICES AND ASSISTANCE
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Services to Customer in accordance with the Service Level Terms attached hereto as Exhibit A. As part of the registration process, Customer will identify an administrative username and password for Customer's Company account. Company reserves the right to refuse registration or cancel passwords it deems inappropriate.
Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company's standard practice. Additional users and passwords will be provided as Customer's reasonable needs dictate.
2. RESTRICTIONS AND LIABILITIES
Customer shall not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the underlying source code, object code or structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services ("Software"); modify, translate or create derivative works based on the Services or any Software (except to the extent expressly permitted by the Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
Customer represents, covenants and warrants that Customer will use the Services only in accordance with the Company's then current published standard policies ("Policy") and with all applicable laws and regulations. Although the Company has no obligation to monitor Customer's use of the Services, it may do so and may prohibit any use of the Services that it believes violates (or is alleged to violate) the foregoing.
Customer shall be responsible for obtaining and maintaining all ancillary equipment and services necessary to connect to, access or otherwise use the Services, including, but not limited to, modems, hardware, servers, software, operating systems, networks, web servers and the like (collectively, the "Service").Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Customer's account, passwords (including, without limitation, administrative and user passwords) and files, and for all uses of Customer's account or Equipment with or without Customer's knowledge or consent.
Each of the parties ("Receiving Party") understands that the other party ("Disclosing Party") has disclosed or may disclose commercial, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Disclosing Party Information"). Privileged" of the Disclosing Party). Company Proprietary Information includes non-public information relating to the features, functionality and performance of the Service. Customer Proprietary Information includes non-public data provided by Customer to Company to enable the provision of the Services ("Customer Data"). The Receiving Party agrees to: (i) take reasonable precautions to protect such Proprietary Information, and (ii) not use (except in the performance of the Services or as otherwise permitted herein) or disclose to any third party such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document that (a) is or becomes available to the general public, or (b) was in its possession or known to it prior to its receipt from the Disclosing Party, or (c) was lawfully disclosed to it without restriction by a third party, or (d) was independently developed without using any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Customer shall own all right, title and interest in and to the Customer Data, as well as any data based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements, extensions or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Support, and (c) all intellectual property rights related to any of the foregoing.
The Customer shall pay the Company the applicable fees described in the Purchase Order for the Services in accordance with the terms of the Purchase Order ("Fees"). If Customer's use of the Services exceeds the Service Capacity set forth in the Order Form or requires payment of additional fees (subject to the terms of this Agreement), Customer will be billed for such use and Customer agrees to pay the additional fees as set forth herein. Company reserves the right to change the applicable Fees or charges and to establish new charges and Fees at the end of the then-current Initial Service Period or renewal period upon thirty (30) days prior notice to Customer (which may be sent by email). If the Customer believes that the Company has billed the Customer incorrectly, the Customer must contact the Company no later than 60 days after the closing date of the first billing statement on which the error or problem appears in order to receive an adjustment or credit. Inquiries should be directed to the Company's customer service department.
Company may elect to bill by invoice, in which case, Company must receive payment in full for invoices issued in a given month immediately and up to five (5) days after the subscription renewal date. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum allowed by law, whichever is less, plus all collection costs, and may result in immediate termination of Service. Customer shall be responsible for all taxes applicable to the Services, other than taxes based on the Company's net income.
Subject to earlier termination as provided below, this agreement is for the Initial Service Period as specified in the Order Form and shall automatically renew for additional periods of the same duration as the Initial Service Period (collectively, "Period"), unless either party requests termination at least thirty (30) days prior to the end of the then current term.
In addition to any other remedies it may have, either party may also terminate this agreement upon thirty (30) days' notice (or without notice in the event of non-payment), if the other party materially breaches any of the terms or conditions of this agreement. Customer shall pay for the Services in full up to and including the last day for the provision of the Services. Upon any termination, Company shall make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but shall not be obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination shall survive termination, including but not limited to accrued payment rights, confidentiality obligations, warranty disclaimers and limitations of liability.
The Company will use reasonable efforts, consistent with applicable industry standards, to maintain the Services in a manner that minimizes errors and interruptions to the Services. The Services may be temporarily unavailable due to scheduled maintenance or unscheduled emergency maintenance, whether by the Company or third party providers, or due to other causes beyond the Company's reasonable control, but the Company will use reasonable efforts to provide advance written or email notice of any scheduled service interruption. Notwithstanding the foregoing, the Company will does not warrant that the Services will be uninterrupted or error-free; nor does it make any warranty as to THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED "AS IS" AND THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT IN THE CASE OF BODILY INJURY TO ANY PERSON, THE COMPANY AND ITS SUPPLIERS (INCLUDING, WITHOUT LIMITATION, ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, SUBSIDIARIES, AFFILIATES, AGENTS, CONTRACTORS AND EMPLOYEES SHALL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND THE REASONABLE CONTROL OF THE COMPANY; OR (D) FOR ANY AMOUNT WHICH, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEEDS THE FEES PAID BY THE CUSTOMER TO THE COMPANY FOR SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT GIVING RISE TO LIABILITY, IN EACH CASE, WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this agreement is held to be unenforceable or invalid, such provision shall be limited or eliminated to the minimum extent necessary for this agreement to remain in full force and effect and enforceable. This agreement is not assignable, transferable or sublicensable by Customer except with the prior written consent of Company. The Company may transfer and assign any of its rights and obligations under this agreement without consent. This agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all prior written and oral agreements, communications and other understandings relating to the subject matter of this agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture or employment is created as a result of this agreement and Customer has no authority of any kind to bind Company in any respect. In any action or proceeding to enforce rights under this agreement, the prevailing party shall be entitled to recover costs and attorneys' fees. All notices under this agreement shall be in writing and shall be deemed duly given when received, if delivered personally; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after mailing, if sent for overnight delivery by a recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This agreement shall be governed by the laws of the State of Chile without regard to its conflict of law provisions.
The FILLRATE100 and OTIF100 applications are provided on a Software as a Service (SaaS) basis, and access URLs may vary. The applications are add-ons to the customers' ERP or production order and inventory recording system (depending on the application) and do not replace data or systems in any way.
The applications receive data and return suggestions to make daily decisions in the operation.
The data can be uploaded manually by importing it from the applications, or alternatively it can be sent via SFTP to the corresponding server.
The websites of each application have an expected 99.9% uptime level.
Any application or data loading process failures will be remediated in 24 hours or less.
Daily backups are made of the databases and data received, which are kept for 7 days available for recovery or revision, in case the client requires it.
The services are permanently monitored by Goldfish to detect any anomaly that may arise and remedy it as soon as possible.
Goldfish handles requests through multiple communication channels: mail, telephone, messaging, and a support ticket system.
If the issue cannot be remediated quickly, Goldfish is able to rebuild the affected application, restoring data backed up less than 24 hours old, in less than a day.
As long as the customer's subscription remains valid.