SaaS Agreement

Software as a Service Agreement

This Software as a Service Agreement is entered into by and between Augmenta USA, Inc. (“Augmenta”) and the counterparty set forth in each applicable Order Form into which this SaaS Agreement is incorporated (the “Customer”).

1. Definitions

In addition to any terms defined throughout this Agreement, Exhibit A contains a list of defined terms used herein.

2. Services

Provisioning of the Services. Subject to compliance with the terms and conditions of the Agreement, Augmenta hereby grants to the Customer a non-exclusive, non-transferable, limited, non-sublicensable right to permit its Authorized Users access to and use of the Platform during the Term (as defined below), solely for Customer’s internal business purposes, and in accordance with the terms and conditions herein.

Order Forms. The parties have entered into an Order Form, which includes additional terms and conditions for the Customer’s access to and use of the Platform and receipt of other Services. If the parties agree that Augmenta should provide further services not described in the Agreement, they shall enter into a new agreement documenting same.
Login Credentials. The Customer is responsible for identifying and authenticating all Authorized Users, for ensuring that only Authorized Users access and use the Platform, and for Authorized Users’ compliance with this Agreement.
Restrictions on Use. The Customer will not itself, and will not permit others, including the Authorized Users, to: some text
1. sub-license, sell, rent, lend, lease or distribute the Services, or any part thereof, or any intellectual property rights therein or thereto, or otherwise make the Services available to others, or use the Services for the benefit of third parties, including on or in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service;
2. use or access the Platform: (A) in violation of any applicable law or intellectual property right, (B) in a manner that threatens the security or functionality of the Platform, or (C) for any purpose or in any manner not expressly permitted in this SaaS Agreement;
3. use the Platform to create, collect, transmit, store, use or Process any Customer Data other than in accordance with this Agreement;
4. upload to the Platform or otherwise use the Platform in connection with any documents, information or data that: (A) contains any computer viruses, Trojan horses, worms, logic bombs, malicious code, or any software intended to damage or alter a computer system or data; (B) the Customer does not have the lawful right to create, collect, disclose, transfer, transmit, store, use, Process or otherwise handle; (C) violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
5. copy, modify, or create derivative works or improvements of the Services or any documentation provided in connection therewith;
6. reverse engineer, de-compile, disassemble the Platform or any portion thereof, or otherwise attempt to derive or gain access to the source code of the Platform;
7. perform any vulnerability, penetration or similar testing of the Platform without first obtaining Augmenta’s written consent (which Augmenta may withhold in its sole discretion);
8. use any robot, spider, or other automatic device, process, or means to access the Platform for any purpose, including monitoring or copying any of the material on the Platform;
9. impersonate or attempt to impersonate Augmenta, any Augmenta employee, another user, or any other person or entity (including by using email addresses associated with any of the foregoing);
10. remove or obscure any proprietary notices or labels on the Platform or its documentation, including brand, copyright, trademark and patent or patent pending notices;
11. access or use the Platform for the purpose of building a similar or competitive product or service, or to perform or disclose any comparative analysis, including benchmarking, performance assessments, feature evaluation, or testing of the Platform’s capabilities or performance metrics, or to share any such information with third parties;
12. otherwise attempt to interfere with the proper working of the Platform; or
13. use the Services in violation of the Acceptable Use Policy attached as Exhibit B.
Suspension of Access; Routine Maintenance; Modifications. Augmenta may from time to time in its discretion and without limiting any of its other rights or remedies, suspend the Customer’s access to or use of the Platform: (i) for routine maintenance; (ii) due to a Force Majeure Event (as defined below); (iii) if Augmenta believes in good faith and sole discretion that the Customer or any Authorized User has violated any provision of this Agreement or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or the documentation; (iv) to address any emergency security concerns; or (v) if required to do so by a regulatory body, judicial demand or order, subpoena, law enforcement request, or as a result of a change in applicable law.
Subcontracting. Augmenta may from time to time in its discretion engage third parties to provide or perform the Services (each, an “Augmenta Subcontractor”).
Feedback. To the extent that the Customer or any Authorized User submits ideas, suggestions, documents, or proposals regarding the Platform or the Services to Augmenta (collectively, “Feedback”), the Customer acknowledges and agrees that notwithstanding anything to the contrary set out in this Agreement: (i) Augmenta is not under any obligation of confidentiality with respect to the Feedback; and (ii) the Customer hereby grants Augmenta a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, assignable, sublicensable, and fully paid up license to use, commercialize or disclose (or to choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, and in any manner.
Third-Party Services. The Services may include services, data and products which are provided by third parties. Use of the Services by the Customer or its Authorized Users shall constitute the Customer’s agreement to all terms and conditions applicable to such third-party services. The Platform may also contain features designed to interoperate with third-party services. Augmenta cannot guarantee the continued availability of such features, and may cease providing them without entitling the Customer to any refund, credit, or other compensation, if, for example, and without limitation, the provider of a third-party service ceases to make the third-party service available or changes its features.

3. Ownership; Reservation of Rights

The Customer retains all ownership and intellectual property rights in and to the Customer Data, and grants to Augmenta a non-exclusive, worldwide, royalty-free, irrevocable, assignable (in connection with an assignment of this Agreement as a whole), sublicensable right to access, collect, copy, display, store, disclose, transfer, transmit, modify, use and Process the Customer Data to: (i) provide the Services; (ii) maintain, develop, improve, and enhance the Services, and Augmenta’s other offerings; and (iii) produce and use Aggregated Data and Usage Data as set forth herein.

Augmenta or its licensors retain all ownership and intellectual property rights in and to: (i) the Services and the results of the Services (excluding Customer Data); (ii) the Usage Data and the Aggregated Data; (iii) anything developed or delivered by or on behalf of Augmenta under this Agreement; and (iv) any Modifications to the foregoing (collectively, the “Augmenta Property”). All rights not expressly granted by Augmenta to the Customer under this Agreement are reserved by Augmenta. To the extent that the Customer owns any of the foregoing, it hereby irrevocably assigns and transfers the Augmenta Property, or any portion thereof, to Augmenta.

4. Privacy

Personal Information. The Customer acknowledges and agrees that personal information, including the personal information of Authorized Users, will be treated in accordance with Augmenta’s privacy policy located at augmenta.ai/legal/privacy-policy.

Customer’s Provision of Personal Information. The Customer represents, warrants and covenants that it has and will continue to maintain throughout the Term all necessary authority and consent under applicable federal, state, provincial and local laws, rules and regulations concerning the privacy and security of personal information, to transfer and disclose the personal information to Augmenta, and for Augmenta and any Augmenta Subcontractor to Process the personal information in connection with performing their obligations or exercising their rights under this Agreement.

5. Customer User Account

Upon the Customer’s request, Augmenta will issue one or more accounts (each, a “Customer User Account”) to Customer’s Authorized Users. The Customer will not permit anyone other than an Authorized User to use or access the Platform or use such Customer User Account login credentials. The Customer will not allow any Authorized User to share the Customer User Account login credentials with any other person. The Customer will promptly notify Augmenta of any actual or suspected unauthorized use of the Platform . Augmenta reserves the right to suspend, deactivate, or replace any Customer User Account credentials, if it determines that the Customer User Account may have been used for an unauthorized purpose or by an unauthorized party. The Customer will ensure that all Authorized Users are contractually bound to terms and conditions with the Customer that are no less restrictive or protective of Augmenta’s rights than those set forth in this Agreement. The Customer is responsible for all acts and omissions of Authorized Users. The Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to securely administer the distribution and use of all Customer User Accounts.

6. Support and Maintenance

The Customer will have access to Augmenta’s technical support team which shall be generally available Monday through Friday, from 9:00 AM to 5:00 PM EST, excluding U.S. holidays, to provide assistance with basic troubleshooting, general inquiries, and resolving common user issues (“Support Services”).
Augmenta will perform routine maintenance on the Platform from time to time, and will endeavor to perform such maintenance during off-hours (e.g., weekends and late evenings or overnight during its business hours) in an effort to minimize disruptions to use of the Services, but cannot guarantee that such timeframes will always be observed.
Augmenta may also be required to perform emergency maintenance (e.g., to address a security flaw in underlying third-party provider software) from time to time, and will perform such maintenance as it deems appropriate in its discretion.

7. Service Levels

Augmenta will make the Platform available to the Customer in accordance with any performance standards set out in the Order Form.
The Services will not be considered unavailable nor any service level failure be deemed to occur in connection with any failure or impaired ability of the Customer or its Authorized Users to access or use the Services that is due, in whole or in part, to any: (i) act or omission of the Customer or any Authorized User, including any action in violation of this Agreement; (ii) the Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement; (iii) the Customer’s or its Authorized User’s Internet connectivity, or failures of the Internet generally; (iv) a Force Majeure Event; (v) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Augmenta pursuant to this Agreement; (vi) routine maintenance, emergency maintenance, or scheduled downtime; or (vii) disabling, suspension, or termination of the Services.

8. Fees and Payment

Fees. The Customer will pay to Augmenta the fees described in the Order Form (collectively, “Fees”). Unless otherwise noted on the Order Form, all Fees are identified in United States Dollars. Augmenta reserves the right, on an annual basis, to increase the Fees upon notice to the Customer.
Invoicing/Payment. Augmenta will prepare and send to the Customer, using the then-current contact information on file with Augmenta, an invoice containing Fees due as described in the Order Form. Unless otherwise expressly stipulated in an invoice, the Customer will pay all invoiced amounts within thirty (30) calendar days of the invoice date. The Customer may not withhold or setoff any amounts due under this Agreement. Customer shall be responsible for all costs of collections, including legal and attorneys fees, should Augmenta be required to pursue any actions against the Customer for late or non-payment. Late payment may also, in Augmenta’s discretion, incur interest at the rate of one and a half percent (1.5%) compounded monthly, or the maximum rate permitted by law (if less), until all outstanding amounts are fully paid.
Taxes. The Fees do not include applicable sales, use, gross receipts, value-added, goods and services tax or harmonized sales tax, personal property or any other taxes. The Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges, including any applicable interest and penalties payable in connection with the transactions contemplated by this Agreement, other than taxes based on the net income or profits of Augmenta.
Suspension. Augmenta reserves the right to suspend access to the Services until all due and undisputed amounts are paid in full. Any suspension of the Services by Augmenta pursuant to this Agreement will not excuse the Customer from its obligation to make payments under this Agreement.

9. Confidential Information

Confidentiality. For the purposes of this Agreement, the term “Confidential Information” means all information, technology, data, and other materials of any kind, in any form or medium, of or about a party (“Discloser”) that has been or is obtained by or otherwise comes into the possession or knowledge of the other party (“Recipient”), whether such information was obtained by or came into the possession of Recipient prior to, on, or after the Effective Date, whether communicated orally, in writing or otherwise, and whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing, Confidential Information of the Discloser includes: (i) all of Recipient’s notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other similar materials created from, making use of or making reference to the Discloser’s Confidential Information; (ii) information concerning the business, trade secrets, know-how, technology, operations, properties, pricing, assets, employees, customers, suppliers, contracts, prospects, research, processes or methods, strategies and product roadmaps of Discloser; (iii) any information concerning Discloser’s past, present or future customers, suppliers, technology or business; and (iv) any information which Recipient may discover, observe or otherwise become aware of during meetings between the parties or Recipient’s visits to the offices or facilities of Discloser.
Exclusions from Confidential Information. Notwithstanding the foregoing, Confidential Information does not include any information that: (i) is publicly available prior to it being obtained by or becoming known to Recipient, or that subsequently becomes publicly available through no breach of this Agreement by Recipient; (ii) Recipient can demonstrate (through written records) was known to it prior to it being obtained by or becoming known to Recipient in connection with or as a result of entering into this Agreement, and was not obtained subject to a duty of confidentiality and not as part of its engagement with Discloser (prior to or during the Term); (iii) becomes known to Recipient from a third party not subject to a duty of confidentiality; or (iv) Recipient can demonstrate (through written records) was independently developed by it or by individuals employed or engaged by Recipient who did not have any access to, or the benefit of, and without making reference to the Confidential Information of Discloser. Notwithstanding the foregoing, any personal information will constitute Confidential Information, and continue to be treated as such, even if one of the foregoing exceptions might seem to apply.
Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times following the Term it will not, except to exercise its rights or perform its obligations under this Agreement: (i) disclose Confidential Information of Discloser to any person, except to its own personnel if and to the extent that such persons have a “need to know” such Confidential Information in connection with Discloser performing its obligations or exercising its rights under this Agreement and provided that such persons have entered into written agreements containing provisions no less protective of such Confidential Information than those contained in this Agreement; (ii) use Confidential Information of Discloser except as permitted herein; or (iii) alter or remove from any Confidential Information of Discloser any proprietary legend. Each party will take industry standard precautions to safeguard the other party’s Confidential Information, which will in any event be at least as stringent as the precautions that Recipient takes to protect its own Confidential Information of a similar type. Recipient must ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ non-compliance with, the terms of this Section 9.
Exceptions to Confidentiality. Notwithstanding Section 9(c), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, Recipient promptly notifies Discloser in writing of such required disclosure and cooperates with Discloser to seek an appropriate protective order or other limitations on disclosure; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with its business; or (iii) in the case of Augmenta, to potential assignees, acquirers or successors of Augmenta if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Augmenta. If Discloser waives compliance or, after providing the notice and assistance required under this Section 9(d), Recipient remains required by law to disclose any Confidential Information, Recipient shall disclose only that portion of the Confidential Information that, on the advice of Recipient’s legal counsel, Recipient is legally required to disclose and shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
Injunctive Relief. The parties agree that either party will be entitled to seek injunctive relief to prevent breaches of the provisions of Section 9 and to specifically enforce the provisions of Section 9 in addition to any other remedy to which such party may be entitled at law or in equity.

10. Warranty; Disclaimer; Indemnity

Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (ii) it has the full right, power and authority to enter into this Agreement; (iii) the execution of the Agreement by its representative whose signature is set forth in the applicable Order Form has been duly authorized by all necessary corporate action of the party; and (iv) when the applicable Order Form is executed by the Customer and delivered to Augmenta, the Agreement will constitute the legal, valid and binding obligation of the parties, enforceable against the parties in accordance with its terms.
GENERAL DISCLAIMER. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AUGMENTA HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING ANY OF THE FOREGOING, AUGMENTA EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO THE CUSTOMER IN CONNECTION WITH THE CUSTOMER’S USE OF THE SERVICES (OR ANY PART OF THEM) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY THE CUSTOMER FOR ANY PURPOSE WHATSOEVER.

11. Limitation of Liabilities

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
IN NO EVENT WILL AUGMENTA’S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH OR UNDER THE AGREEMENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY THE CUSTOMER UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH A CAUSE OF ACTION ARISES HEREUNDER.

12. Term and Termination

Term. The Agreement will commence on the Effective Date set forth in the Order Form and continue for the Subscription Term set forth therein (the “Initial Term”), and shall automatically renew thereafter for successive periods equal to the Subscription Term (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party gives notice to the other of its choice not to renew the Order Form no later than sixty (60) days prior to the end of the then current term, or unless earlier terminated in accordance with the terms of this SaaS Agreement or the Order Form.
Termination for Cause. Either party may, in addition to other relief, terminate the Agreement if the other party commits a material breach hereof and fails within fifteen (15) calendar days after receipt of notice of such breach to correct such material breach.
Effects of Termination. Upon termination of this Agreement, the Customer will immediately cease accessing or using the Services, and the Customer will return to Augmenta, or irretrievably delete all Augmenta Property in its possession or under its control, and certify in writing to Augmenta that the Augmenta Property has been deleted or returned. Within fifteen (15) calendar days following termination, Augmenta will have the right to delete or render inaccessible all Customer Data.
Survival. The following Sections, together with any other provision of the Agreement which expressly or by their nature survive termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of the Agreement, will survive expiration or termination of the Agreement for any reason: Section 1 (Definitions), Section 2(g) (Feedback), Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 8 (Fees and Payment), Section 9 (Confidential Information), Section 10 (Warranty; Disclaimer; Indemnity), Section 11 (Limitation of Liabilities), Section 12(d) (Survival), and Section 13 (General Provisions).

13. General Provisions

Notices. Notices sent to either party will be effective (i) on the day received, when delivered in writing and in person to the official contact designated by the party to whom a notice is being given, as documented by reputable overnight courier service, (ii) four (4) business days after being mailed by registered mail with postage prepaid, return receipt requested, or (iii) if sent via email, when the receiving party confirms receipt of delivery. Notices must be sent:

If to Augmenta, to the following address:

45 Carlton Street, #516

Toronto, ON, Canada, M5B 2H9

Email: [EMAIL]@augmenta.ai

If to the Customer, at the address indicated on the applicable Order Form.

Either party may change its contact information by giving notice of the change to the other party pursuant to the terms of this Section 13(a).

Assignment. The Customer is not permitted to assign this Agreement or any portion thereof, or any of its rights or obligations hereunder, to any third party without Augmenta’s prior written consent in each instance. For purposes of the preceding sentence, and without limiting its generality, any change of control, merger, consolidation or reorganization involving the Customer (regardless of whether the Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Augmenta’s prior written consent is required. Any attempt by the Customer to assign this Agreement, other than as permitted by this Section, will be void and of no effect. Augmenta may assign this Agreement to any third party without the Customer’s consent, including in the event of a change of control, merger, consolidation or reorganization involving Augmenta. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the parties, and their permitted successors and assigns.
Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the State of New York and the applicable federal laws of the United States, without regard to conflicts of law principles. The parties agree to initiate all legal actions arising hereunder, in the federal or state courts located in the city, county and state of New York, and each party hereby irrevocably subjects itself to the exclusive jurisdiction of such courts, and waive any objection they may have to the laying of such venue. The U.N. Convention on Contracts for the International Sale of Goods will not apply to the Agreement. This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
Export Restrictions. The Customer will not export any materials obtained through the use of the Platform, any documentation, or use the Platform from, outside the United States.
Construction. Except as otherwise provided in this Agreement, the parties’ rights and remedies under the Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of the Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, means the right of a party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other party. The Agreement is the result of negotiations between, and has been reviewed by, each of the parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.
Force Majeure Event. Neither party will be liable for delays caused by any event or circumstances beyond that party’s s reasonable control, including acts of God, acts of government, changes to law or regulations, embargoes, flood, fire, earthquakes, pandemics, war, civil unrest, acts of terror, strikes, slowdowns, walkouts or other labor problems, Internet service failures or delays, cyberattacks, acts or omissions of third-party service providers or other third parties, or the unavailability or modification by third parties of telecommunications or hosting infrastructure or third party software or websites or changes in laws preventing or limiting the provision of the services (each, a “Force Majeure Event”). If a Force Majeure Event occurs, then the party that failed to perform as a result of such Force Majeure Event (the “Excused Party”) will not be liable for such failure provided that the Excused Party complies with the provisions of this subsection (f). The Excused Party will re-commence performance of the obligations that it has failed to perform as a result of the Force Majeure Event without delay, including through the use of alternate sources, workaround plans or other means.
Publicity. The Customer hereby grants Augmenta a limited, non-exclusive, royalty-free, sublicensable, fully paid-up license to use the Customer’s name and trademarks in Augmenta’s marketing materials, including its customer lists and on its website, to identify the Customer as a customer of Augmenta and a user of the Platform. The Customer makes no grant, assignment, license, or other transfer of trademarks or other intellectual property to Augmenta except for the license explicitly set forth herein.
Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Waiver. A waiver of any provision of the Agreement must be in writing and signed by the party so waiving, and a waiver in one instance will not preclude enforcement of such provision on other occasions. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Independent Contractors. The relationship between the parties is that of an independent contractor. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties. Neither party will have, and neither party will represent to any third party that it has, any authority to bind the other party.
Entire Agreement. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements, representations or other communications between the parties, whether written or oral, including any trial, pilot, or proof of concept agreement entered into between the parties for the Services.
Amendments. Augmenta may modify the terms of this SaaS Agreement at any time by posting its new or revised terms to its website. The Customer agrees to all such modified terms upon use of the Platform after posting of such terms.
Further Assurances. Upon Augmenta’s reasonable request, the Customer shall, at Augmenta’s reasonable cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
No Third-Party Beneficiaries. The Agreement is for the sole benefit of the parties hereto and their respective permitted successors and assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever.

Exhibit A

Definitions

“Aggregated Data” means all data produced by or Processed by the Platform which is aggregated and is not used to identify any particular individual.

“Authorized User” means those employees and independent contractors of the Customer, who the Customer authorizes to use and access the Platform on its behalf, and solely for its benefit.

“Customer Data” means any data, information, content, records, and files that the Customer (or any of its Authorized Users) loads, input, or enters into the Services, other than any Usage Data or Aggregated Data.

“Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations.

“Platform” shall have the meaning set forth in the applicable Order Form.

“Process” or “Processing” means access, collection, use, modification, retrieval, transfer, communication, disclosure, storage, deidentification, anonymization, deletion, destruction, management or other handling.

“Services” means the Platform and the Support Services.

“Usage Data” means information and data that is collected or generated by the Platform related to how the Customer or its Authorized Users interact with the Platform, including any generated output, frequency and duration of usage, specific features or functions accessed, user preferences and patterns of behavior and metadata, but expressly excluding any information or data that can (whether alone or when combined with other information or data) identify or reveal the identity of individual user.

Exhibit B

Acceptance Use Policy

The following conduct is strictly prohibited when using the Platform:

Using another Authorized User’s passwords or other log-in credentials.
Allowing any third party to access the Platform.
Accessing or attempting to access restricted portions of the Platform, an operating system, security software or other administrative applications associated therewith.
Copy, frame or mirror any part or content of the Platform.
Accessing the Platform in such a way as to disrupt the use of such item by others or damage or encumber the systems on which they are hosted.
Using, transmitting or installing any malicious code, virus, time bomb, Trojan on or through the Platform, or accessing or attempting to access the Platform for the purpose of infiltrating a computer or computing system or network, or damaging the software components of the Platform, or the systems of the hosting provider, any other suppliers or service provider involved in providing the Platform, or another user.
Sending any communications that could be considered hate mail, chain letters, harassment, discriminatory remarks, or engaging in other antisocial behaviors.
Posting or providing to Augmenta any pornographic material, inappropriate files, or files dangerous to the integrity of the local area network to which it is connected.
Downloading, copying, otherwise duplicating, and/or distributing copyrighted or other protected materials without the specific written permission of the owner.
Using or accessing the Platform for any unlawful purpose.
Engaging in denial-of-service attacks or other means of attempting to interfere with use of the Platform by others.
Interfering with the use of the Platform by other parties, or the equipment used to provide same.
Disabling, interfering with or circumventing any aspect of the Platform.
Using the Platform other than as described in the applicable documentation.