Software as a Service Agreement
We provide Users with access to certain calculation tools to help our customers analyze data tables by providing built in tools through the website and associated domains of www.enhencer.com. If you have suggestions that can help us improve it or any questions about this Agreement, please contact us at firstname.lastname@example.org and let us know.
Enhencer will provide you with limited access to its own proprietary online services to analyze your own data. The website, and other content included on this website such as text, graphics, logos, button icons, images, audio clips are the property of Enhencer or its third party content suppliers, and is protected by international copyright laws. They should not be used or duplicated under any circumstances other than described in this Agreement.
- Grant of License to Access and Use Service. GAUSS STATISTICAL SOLUTIONS LLC hereby grants to User, including to all User’s Authorized Users, a non-exclusive, non-sublicensable, non-assignable, royalty-free, and worldwide license to access and use the Data Analytics Platform – Enhencer (the “Service”) solely for User’s internal business operations (“Data Analysis”), according to GAUSS STATISTICAL SOLUTIONS LLC’s terms and policies listed at www.enhencer.com.
- Fees. User may choose to use Service for free with limits mentioned in Pricing page and if User chooses to use paid packages, User shall pay GAUSS STATISTICAL SOLUTIONS LLC a monthly subscription fee described in the Pricing Page (the “Subscription Fee”) for the Data Analysis provided under this agreement.
- Payment. User shall pay the Subscription Fee to GAUSS STATISTICAL SOLUTIONS LLC
3.1. by a single payment for 12-months subscription,
3.2. or in recurring monthly billing from Credit Cards.
- Taxes. Payment amounts under this agreement do not include Taxes, and User shall pay all Taxes applicable to payments between the parties under this agreement.
- Interest on Late Payments. Any amount not paid when due will bear interest from the due date until paid at a rate equal to % per month ([12.68]% annually) or the maximum allowed by Law, whichever is less.
- Support Services
6.1. Initial Support. For the 12 month period beginning on the Effective Date, and at GAUSS STATISTICAL SOLUTIONS LLC’s own expense, GAUSS STATISTICAL SOLUTIONS LLC shall provide User with
telephone or electronic support during GAUSS STATISTICAL SOLUTIONS LLC’s normal business hours in order to help User locate and correct problems with the Service and any related software, and
internet-based support system generally available seven days a week, twenty-four hours a day.
6.2. Renewed Support. After the initial 12 month support period, User may elect to renew GAUSS STATISTICAL SOLUTIONS LLC’s support services under this paragraph [SUPPORT] for additional 12 month periods, at GAUSS STATISTICAL SOLUTIONS LLC’s then-current service rates.
- Service Levels
7.1. Applicable Levels. GAUSS STATISTICAL SOLUTIONS LLC shall provide the Service to User with a System Availability of at least % during each calendar month.
7.2. System Maintenance. GAUSS STATISTICAL SOLUTIONS LLC may
(a) take the Service offline for scheduled maintenances that it provides User the schedule for in writing (though this scheduled maintenance time will not count as System Availability), and
(b) change its schedule of maintenances on one week written notice to User.
7.3. System Availability Definition
(a) Percentage of Minutes per Month. “System Availability” means the percentage of minutes in a month that the key components of the Service are operational.
(b) Not Included in “System Availability. “System Availability” will not include any minutes of downtime resulting from
(i) scheduled maintenance,
(ii) events of force majeure,
(iii) malicious attacks on the system,
(iv) issues associated with User’s computing devices, local area networks or internet service provider connections, or
(v) GAUSS STATISTICAL SOLUTIONS LLC’s inability to deliver services because of User’s acts or omissions.
- Data Protection. User shall implement reasonable safeguards to prevent unauthorized access to, use of, or disclosure of the disclosing party’s Data.
- Statistical Information. GAUSS STATISTICAL SOLUTIONS LLC may anonymously compile statistical information related to the performance of the Service for purposes of improving the Service service, but only if such information does not identify the data as User’s or otherwise include User’s name.
11.1. Mutual Representations
(a) Existence. The parties are corporations incorporated and existing under the laws of the jurisdictions of their respective incorporation.
(b) Authority and Capacity. The parties have the authority and capacity to enter into this agreement.
(c) Execution and Delivery. The parties have duly executed and delivered this agreement.
(d) Enforceability. This agreement constitutes a legal, valid, and binding obligation, enforceable against the parties according to its terms.
(e) No Conflicts. Neither party is under any restriction or obligation that the party could reasonably expect might affect the party’s performance of its obligations under this agreement.
(f) No Breach. Neither party’s execution, delivery, or performance of its obligations under this agreement will breach or result in a default under
its articles, bylaws, or any unanimous shareholders agreement,
any Law to which it is subject,
any judgment, Order, or decree of any Governmental Authority to which it is subject, or
any agreement to which it is a party or by which it is bound.
(g) Permits, Consents, and Other Authorizations. Each party holds all Permits and other authorizations necessary to
own, lease, and operate its properties, and
conduct its business as it is now carried on.
(h) No Disputes or Proceedings. [Except as disclosed in the parties respective Disclosure Schedules] There are no Legal Proceedings pending, threatened, or foreseeable against either party, which would affect that party’s ability to complete its obligations under this agreement.
(i) No Bankruptcy. Neither party has taken or authorized any proceedings related to that party’s bankruptcy, insolvency, liquidation, dissolution, or winding up.
12.2. GAUSS STATISTICAL SOLUTIONS LLC’s Representations
(a) IP Disclosure Schedule. GAUSS STATISTICAL SOLUTIONS LLC’s Disclosure Schedule lists any exceptions to its representations.
(b) Ownership. [Except as disclosed in GAUSS STATISTICAL SOLUTIONS LLC’s Disclosure Schedule] GAUSS STATISTICAL SOLUTIONS LLC is the exclusive legal owner of the Service, including all Intellectual Property included in the Service and granted under Data Analysis.
(c) Status of Licensed Intellectual Property. [Except as disclosed in GAUSS STATISTICAL SOLUTIONS LLC’s Disclosure Schedule] GAUSS STATISTICAL SOLUTIONS LLC has properly registered and maintained all Intellectual Property included in the Service and granted under Data Analysis and paid all applicable maintenance and renewal fees.
(d) No Conflicting Grant. [Except as disclosed in GAUSS STATISTICAL SOLUTIONS LLC’s Disclosure Schedule] GAUSS STATISTICAL SOLUTIONS LLC has not granted and is not obligated to grant any license to a third party that would conflict with Data Analysis.
(e) No Infringement. [Except as disclosed in GAUSS STATISTICAL SOLUTIONS LLC’s Disclosure Schedule] The Service does not infringe the Intellectual Property rights or other proprietary rights of any third party.
(f) No Third Party infringement. [Except as disclosed in GAUSS STATISTICAL SOLUTIONS LLC’s Disclosure Schedule] To GAUSS STATISTICAL SOLUTIONS LLC’s Knowledge, no third party is infringing the Service.
- User Obligations
12.1. Hardware Obligations. User shall be responsible for
obtaining and maintaining all computer hardware, software, and communications equipment needed to internally access the Service, and paying all third Gauss Statistical Solutions LLC access charges incurred while using the Service.
12.2. Anti-Virus Obligations. User shall be responsible for implementing, maintaining, and updating all necessary and proper procedures and software for safeguarding against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties (collectively “Viruses”).
12.3. User’s Use of Services. User shall
abide by all local and international Laws and regulations applicable to its use of the Service,
use the Service only for legal purposes, and
comply with all regulations, policies and procedures of networks connected to the SaaS.
- Restricted Uses. User will not
upload or distribute of any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Service,
modify, disassemble, decompile or reverse engineer the Service,
probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Service,
take any action that imposes an unreasonably or disproportionately large load on the sites, servers, or networks connected to the Service,
copy or reproduce the Service,
access or use any other clients’ or their users’ data through the Service,
maliciously reduce or impair the accessibility of the Service,
use the service to post, promote, or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, hateful, or otherwise objectionable material, or
transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability.
- Term. This agreement begins on the date payment is made, and will continue until terminated (the “Term”).
- Ownership of Intellectual Property. GAUSS STATISTICAL SOLUTIONS LLC will retain all interest in and to the Services, including all documentation, modifications, improvements, upgrades, derivative words, and all other Intellectual Property rights in connection with the Service, including GAUSS STATISTICAL SOLUTIONS LLC’s name, logos and trademarks reproduced through the Service.
16.1. Termination on Notice. Either party may terminate this agreement for any reason on 30 business days’ notice to the other party.
16.2. Termination for Material Breach. Each party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if
the other party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and
the failure, inaccuracy, or breach continues for a period of 3 Business Days’ after the injured party delivers notice to the breaching party reasonably detailing the breach.
16.3. Termination for Failure to Pay. GAUSS STATISTICAL SOLUTIONS LLC may terminate this agreement with immediate effect by delivering notice of the termination to User if User fails to pay the monthly Subscription Fee on time three times over any 12 month period.
- Effect of Termination
17.1. Refund Amounts. GAUSS STATISTICAL SOLUTIONS LLC shall immediately refund to User any prepaid Subscription Fees covering the remainder of the term of all subscriptions after the effective date of termination.
17.2. Pay Outstanding Amounts. User shall immediately pay to GAUSS STATISTICAL SOLUTIONS LLC all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination.
17.3. Discontinuance of Use. User shall cease all use of the Service upon the effective date of the termination.
17.4. Recovery of Data. User will have 30 days from the date of termination to retrieve any of data that User wishes to keep.
18.1. Indemnification by GAUSS STATISTICAL SOLUTIONS LLC.
(a) Indemnification for Infringement Claims. Subject to exclusions, GAUSS STATISTICAL SOLUTIONS LLC (as an indemnifying party) shall indemnify User (as an indemnified party) against all losses and expenses arising out of any proceeding
brought by a third party, and
arising out of a claim that the Services infringe the third party’s Intellectual Property rights.
(b) Qualifications for Indemnification. GAUSS STATISTICAL SOLUTIONS LLC will be required indemnify User under paragraph Indemnification for Infringement Claims only if
User’s use of the Services complies with this agreement and all documentation related to the Services,
the infringement was not caused by User modifying or altering the Services or documentation related to the Services, unless GAUSS STATISTICAL SOLUTIONS LLC consented to the modification or alteration in writing, and
the infringement was not caused by User combining the Services with products not supplied by GAUSS STATISTICAL SOLUTIONS LLC, unless GAUSS STATISTICAL SOLUTIONS LLC consented to the combination in writing.
18.2. Mutual Indemnification. Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses arising out of any proceeding
(a) brought by either a third party or an indemnified party, and
(b) arising out of the indemnifying party’s willful misconduct or gross negligence.
18.3. Notice and Failure to Notify
(a) Notice Requirement. Before bringing a claim for indemnification, the indemnified party shall
(i) notify the indemnifying party of the indemnifiable proceeding, and
(ii) deliver to the indemnifying Gauss Statistical Solutions LLC legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.
(b) Failure to Notify. If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party’s failure.
18.4. Exclusive Remedy. The parties’ right to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this section Indemnification.
- Limitation on Liability
19.1. Mutual Limit on Liability. Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this agreement.
19.2. Maximum Liability. GAUSS STATISTICAL SOLUTIONS LLC’s liability under this agreement will not exceed the fees paid by User under this agreement during the 12 months preceding the date upon which the related claim arose.
“Authorized Users” means the list of Persons authorized to use the Services under this agreement.
“Business Day” means a day other than a Saturday, a Sunday, or any other day on which the principal banks located in Istanbul, Turkey are not open for business.
“Data” means all of the data User creates with or uses with the Service, or otherwise related to User’s use of the Services.
“Disclosure Schedule” means the schedules delivered, before the execution of this agreement, by each party to the other party which list, among other things, items the disclosure of which is necessary or appropriate either in response to an express disclosure requirement contained in a provision of this agreement or as an exception to one or more of the representations or warranties made by the party, or to one or more of the covenants of the party.
“Effective Date” is defined in the introduction to this agreement.
“Governmental Authority” means
(a) any federal, state, local, or foreign government, and any political subdivision of any of them,
(b) any agency or instrumentality of any such government or political subdivision,
(c) any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that its rules, regulations or orders have the force of law), and
(d) any arbitrator, court or tribunal of competent jurisdiction.
“Intellectual Property” means any and all of the following in any jurisdiction throughout the world
(a) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing,
(b) copyrights, including all applications and registrations related to the foregoing,
(c) trade secrets and confidential know-how,
(d) patents and patent applications,
(e) websites and internet domain name registrations, and
(f) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys’ fees for past, present, and future infringement, and any other rights relating to any of the foregoing).
(a) any law (including the common law), statute, bylaw, rule, regulation, order, ordinance, treaty, decree, judgment, and
(b) any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any Governmental Authority having the force of law.
“Legal Proceeding” means any claim, investigation, hearing, legal action, or other legal, administrative, arbitral, or similar proceeding, whether civil or criminal (including any appeal or review of any of the foregoing).
“[License Grant]” is defined in section Grant of Access and Use of Service.
“Order” means any decision, order, judgment, award, or similar order of any court of competent jurisdiction, arbitration panel, or Governmental Authority with jurisdiction over the subject matter, whether preliminary or final.
“Permits” means all material licenses, franchises, permits, certificates, approvals, and authorizations, from Governmental Authorities necessary for the ownership and operation of the party’s business.
(a) any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and
(b) any individual.
“Service” is defined in section Grant of Access and Use of Service.
“Subscription Fee” is defined in section Subscription Fees.
“System Availability” is defined in section Service Levels.
“Taxes” includes all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, value-added and all other taxes of any kind for which a party may have any liability imposed by any Governmental Authority, whether disputed or not, any related charges, interest or penalties imposed by any Governmental Authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise.
“Term” is defined in section Term.
“Viruses” is defined in section User Obligations.
- General Provisions
21.1. Entire Agreement. The parties intend that this agreement, together with all attachments, schedules, exhibits, and other documents that both are referenced in this agreement and refer to this agreement,
represent the final expression of the parties’ intent relating to the subject matter of this agreement,
contain all the terms the parties agreed to relating to the subject matter, and
replace all of the parties’ previous discussions, understandings, and agreements relating to the subject matter of this agreement.
21.2. Amendment. GAUSS STATISTICAL SOLUTIONS LLC may amend the terms and conditions of this agreement at any time by reasonable notice, including without limitation by posting revised terms on its website at the URL [www.enhencer.com].
21.3. Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the other party’s written consent.
(a) Method of Notice. The parties shall give all notices and communications between the parties in writing by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][, or (v) electronic mail] to the party’s address specified in this agreement, or to the address that a party has notified to be that party’s address for the purposes of this section.
(b) Receipt of Notice. A notice given under this agreement will be effective on
(i) the other party’s receipt of it, or
(ii) if mailed, the earlier of the other party’s receipt of it and the [fifth] business day after mailing it.
21.5. Governing Law. This agreement shall be governed, construed, and enforced in accordance with the laws of the Republic of Turkey, without regard to its conflict of laws rules.
21.6. Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
(a) Affirmative Waivers. Neither party’s failure or neglect to enforce any rights under this agreement will be deemed to be a waiver of that party’s rights.
(b) Written Waivers. A waiver or extension is only effective if it is in writing and signed by the party granting it.
(c) No General Waivers. A party’s failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.
(d) No Course of Dealing. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.
21.8. Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.
This agreement has been executed by the parties.