This Moneiva Software as a Service Agreement (together with the Order Form, this “Agreement”) by and between Moneiva, Inc., a Delaware corporation, (“Moneiva”) and the customer identified on the Moneiva order form into which this Agreement is incorporated (the “Order Form”) executed by such customer (the “Customer”, together with Moneiva, the “Parties”, and each a “Party”), is entered into as of the effective date set forth in the Order Form, or, if none, the date of last signature on the Order Form (“Effective Date”). The Parties agree as follows:
1. SERVICES.
a. SaaS Solution. Subject to the terms and conditions of this Agreement, Moneiva hereby grants Customer a limited, nonexclusive, nonsublicensable, nontransferable right to access and use Moneiva’s software-as-a-service platform (“SaaS Solution”) during the Term solely for Customer’s own internal business operations. Subject to the preceding sentence, Customer may permit Users to access and use the SaaS Solution. “Users“ means the individuals that Customer authorizes to access or use the SaaS Solution. Moneiva will use commercially reasonable efforts to provide Customer with access to the SaaS Solution for use by Customer and its Users, subject to the terms and conditions of this Agreement. Moneiva will provide access to the SaaS Solution via the Internet.
b. Customer Responsibilities. Customer is responsible for access to the SaaS Solution and Customer Data by other persons as a result of Customer’s failure to comply with the terms of this Agreement or use reasonable precautions to secure its own systems or credentials for access to the SaaS Solution. Customer will: (i) prevent unauthorized access to or use of the SaaS Solution, and notify Moneiva immediately of any such unauthorized access or use; and (ii) promptly deactivate the SaaS Solution User account of any individual no longer tasked with the use of the SaaS Solution. Customer will be solely responsible to obtain the authorizations, licenses and consents, if and as required by any applicable law, to make the SaaS Solution available to Users and for the collection, storage and processing of information and/or sensitive information by Moneiva according to Customer’s instructions. “Customer Data” means the electronic information or data submitted or made available by or on behalf of Customer or Users that is received, processed or stored by Moneiva or the SaaS Solution.
c. Use Restrictions. Customer will not, directly or indirectly through any third party: (i) use the SaaS Solution for any purpose other than its own business purposes; (ii) use or access the SaaS Solution in violation of any applicable law, rule or regulation, including any data privacy law or regulation; (iii) sell, resell, license, lease, transfer, distribute, redistribute, assign, transmit, publish, display or otherwise commercially exploit or make available (collectively, “Distribute”) the SaaS Solution to any third party; (iv) Distribute libelous, defamatory, pornographic, obscene, invasive of privacy or publicity rights, abusing, inciting, harassing, threatening, unlawful, tortious, misleading, false or fraudulent Customer Data on, to or through the SaaS Solution; (v) Distribute Customer Data on, to or through the SaaS Solution that violates the rights of any party or infringes upon or misappropriates the patent, trademark, trade secret, copyright, or other intellectual property right of any party; (vi) Distribute malicious or harmful computer code on, to or through the SaaS Solution; or (vii) duplicate or reverse engineer the SaaS Solution, in whole or in part.
d. Upgrades and Modifications. Customer agrees that Moneiva may update, upgrade, enhance or modify the SaaS Solution or any functionality thereof, at any time, including the removal or modification of previously available functionality. All updates, upgrades, enhancements or modifications to the SaaS Solution made available to Customer or Users by Moneiva will automatically be considered part of the SaaS Solution and will be subject to the terms and conditions of this Agreement.
e. Suspension. Moneiva may suspend or interrupt the provision of the SaaS Solution at any time immediately upon notice to Customer if Moneiva determines that: (i) Customer or Users are using or intend to use the SaaS Solution in violation of this Agreement or in violation of any applicable law, rule or regulation; (ii) any computer system of Customer has been compromised or unlawfully accessed; (iii) suspension of the SaaS Solution is necessary to protect the infrastructure of Moneiva or its affiliates, the environment in which the SaaS Solution is deployed, or Moneiva’s other customers; (iv) suspension is required under law, rule or regulation; or (v) Customer has failed to pay Fees when due. All remedies in this Section 1(e) are in addition to, and not in lieu of, other remedies available to Moneiva.
f. Users. Customer will cause all Users to comply at all times with all representations, warranties, restrictions, obligations and covenants of Customer in this Agreement. Customer will be directly liable to Moneiva for any breach of this Agreement by, or caused by, Users.
2. PAYMENT.
a. Terms of Payment; Method. Customer shall pay to Moneiva all fees set forth in the Order Form (“Fees”) at the times identified in the Order Form (or if none, within thirty (30) days of the date of the applicable invoice issued by Moneiva to Customer), without deduction or set-off. All payments of Fees shall be made in U.S. Dollars. Customer will ensure the Moneiva invoice number must be referenced on all payments. Customer agrees that all payments of Fees are nonrefundable, except as expressly set forth in this Agreement.
b. Late Payments. All late payments will bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.
c. Taxes. Fees are exclusive of Taxes, and Customer will be solely responsible for the payment of all such Taxes (other than Taxes computed on the basis of the net income of Moneiva).“Taxes” means all of the following: sales, use or privilege taxes, excise or similar taxes, value added taxes, import and export taxes, duties or assessments, shipping, handling, insurance, brokerage, and other related charges levied by any jurisdiction (including penalties and interest) and any costs associated with the collection and withholding of any of the foregoing items.
3. TERM AND TERMINATION.
a. Term; Renewal. This Agreement shall commence on the Effective Date and remain in full force and effect for the term set forth on the Order Form (the “Initial Term”), unless and until earlier terminated in accordance with this Agreement. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive periods of time equal to the Initial Term (each a “Renewal Term”, together with the Initial Term, the “Term”), unless either Party provides the other Party written notice of nonrenewal no less than sixty (60) days prior to the expiration of the then-current term or earlier terminated in accordance with this Agreement.
b. Termination for Breach. Either Party may terminate this Agreement if the other Party fails to cure any material breach of this Agreement within ten (10) days (or one (1) day if such breach is a breach by Customer of any payment obligation under this Agreement) after written notice of such breach.
c. Immediate Termination. Either Party may terminate this Agreement immediately upon notice to the other Party if: (a) the other Party (i) is adjudged insolvent or bankrupt, (ii) institutes or has instituted against it any proceeding seeking relief, reorganization or arrangement under any laws relating to insolvency (and, in the case of any such proceeding instituted against it, the proceeding is not dismissed within thirty (30) days after the filing), (iii) makes any assignment for the benefit of creditors, (iv) appoints a receiver, liquidator or trustee of any of its property assets, or (v) liquidates, dissolves or winds up its business; or (b) if any change occurs in any applicable laws or regulations that would, in that Party’s reasonable opinion, render the Party’s performance hereunder illegal. Moneiva may terminate this Agreement immediately upon notice to Customer if Customer breaches any provision of Section 1.
d. Effect of Termination. Upon expiration or termination of this Agreement: (i) all rights granted to Customer and Users to access and use the SaaS Solution shall terminate immediately; (ii) Moneiva’s obligation to provide SaaS Solution shall terminate immediately; (iii) each Party shall destroy all copies of the Confidential Information of the other Party on tangible media in such Party’s possession or control or return such copies to the other Party; (iv) Customer shall certify in writing to Moneiva that it has satisfied all obligations in this Section 3(d), and (v) Customer shall pay all Fees incurred as of the date of termination or expiration. Customer acknowledges and agrees that Moneiva has no obligation to retain Customer Data after termination or expiration of this Agreement, and may delete such Customer Data thirty (30) days after termination or expiration of this Agreement. If Customer wishes for Moneiva to preserve a copy of its Customer Data for longer than such thirty (30) day period, Customer shall enter into a separate Order Form for the preservation of such Customer Data.
4. OWNERSHIP.
a. Moneiva Materials. Moneiva retains all right, title and interest (including all intellectual property rights) in and to the SaaS Solution (including all updates, upgrades, enhancements or modifications to or of the SaaS Solution), the solutions provided thereby, all software and technology underlying the SaaS Solution, all Moneiva documentation relating to the SaaS Solution and all content or works of authorship created, licensed or provided by Moneiva (collectively, “Moneiva Materials”). Title to and ownership of any Moneiva Materials created by Moneiva in the course of providing SaaS Solution shall be held exclusively by Moneiva, whether such Moneiva Materials were requested by or on behalf of Customer or incorporate ideas, feedback or comments provided by or on behalf of Customer. Customer will not acquire any rights in or to the Moneiva Materials by implication, estoppel or otherwise. Customer hereby assigns all rights, title and interest in and to the Moneiva Materials to Moneiva.
b. Customer Data. As between the Parties and Customer Data shall remain the property of Customer. Customer hereby grants to Moneiva a nonexclusive, worldwide, royalty-free right and license during the Term and any post-Term data retention period in accordance with Section 3(d) to use, reproduce, distribute, modify, display and prepare derivative works of the Customer Data for purposes of providing the SaaS Solution to Customer.
5. CONFIDENTIALITY.
a. Confidential Information. From time to time during the Term, either Party (as the “Discloser”) may disclose or make available to the other Party (as the “Recipient”), non-public, proprietary, or confidential information of Discloser (“Confidential Information”). Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of Recipient’s breach of this Section 5; (ii) is or becomes available to the Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in Recipient’s possession prior to Discloser’s disclosure hereunder; or (iv) was or is independently developed by Recipient without using any Confidential Information of the Discloser. The Recipient shall: (1) protect and safeguard the confidentiality of the Discloser’s Confidential Information with at least the same degree of care as the Recipient would use to protect its own Confidential Information, but in no event with less than a reasonable degree of care; (2) not use the Discloser’s Confidential Information, or authorize it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (3) not disclose Discloser’s Confidential Information to any person or entity, except to the Recipient’s Group who need to know the Discloser’s Confidential Information to assist the Recipient, or act on its behalf, to exercise its rights or perform its obligations under this Agreement and who have agreed to confidentiality terms at least as restrictive as those set forth in this Section 5. If the Recipient is required by applicable law or legal process to disclose any Confidential Information of the Discloser, Recipient may disclose such portion of the Confidential Information required to be disclosed by applicable law or legal process if Recipient, prior to making such disclosure, uses reasonable efforts to notify Discloser of such requirements to afford Discloser the opportunity to seek, at Discloser’s sole cost and expense, a protective order or other remedy. “Recipient’s Group” means the Recipient’s employees, officers, directors, agents, independent contractors, subcontractors, attorneys, accountants, and financial advisors. Recipient will cause all members of its Recipient’s Group to comply with Recipient’s obligations under this Section 5. Recipient shall be responsible and liable for any and all breaches of this Section 5 by, or caused by, its Recipient’s Group.
b. Data Collection. In addition to the rights and licenses granted in Section 4(b), Customer hereby grants to Moneiva a nonexclusive, worldwide, royalty-free, irrevocable, perpetual right and license to (i) aggregate Customer Data and information or data that is derived by or through Customer’s or Users’ use of the SaaS Solution with other data to create Anonymous Aggregated Data; and (ii) use, reproduce, modify, distribute, display and create derivative works of Anonymous Aggregated Data. Moneiva may use Anonymous Aggregated Data to benchmark, operate and improve the SaaS Solution and other Moneiva goods and services, and market Moneiva products and services. “Anonymous Aggregated Data” means data that has been aggregated with other data and anonymized to exclude data that identifies any individual, company, or organization.
c. Personal Data. Customer will provide Moneiva written notice before uploading, transmitting, making available or otherwise publishing on, to or through the SaaS Solution any personal data.
6. INDEMNIFICATION.
a. Moneiva Indemnification of Customer. Moneiva will indemnify, defend and hold Customer and its directors, officers, employees, agents, successors and permitted assigns harmless from and against all claims, actions, causes of action, investigations, lawsuits, litigation and proceedings initiated by a third party (“Claims”), and all awards, damages, fines, penalties, deficiencies, losses, liabilities (including settlements and judgments) and expenses (including interest, court costs, reasonable fees and expenses of attorneys, accountants and other experts and professionals or other reasonable fees and expenses of litigation or other proceedings or of any claim, default or assessment) (“Losses”) resulting from Claims, to the extent the Claims arise out of or relate to a claim that the SaaS Solution infringes a third party’s U.S. intellectual property rights. The indemnification obligation under this Section 6(a) will not apply to any Claims and Losses subject to indemnification under Section 6(b) or arising from or related to: (i) modification of the SaaS Solution by, or at the request of, any party other than Moneiva; (ii) Customer Data or Third-Party Materials; (iii) the combination of the SaaS Solution with any item, technology, SaaS offering, data, website, content or material not supplied by Moneiva; (iv) the use of the SaaS Solution in violation of this Agreement; or (v) use of the SaaS Solution where such infringement or misappropriation could have been avoided by use of subsequent SaaS Solution provided by Moneiva and Moneiva has notified Customer in writing of a need to update the SaaS Solution.
b. Customer indemnification of Moneiva. Customer will indemnify, defend and hold Moneiva and its directors, officers, employees, agents, successors and permitted assigns harmless from and against all Claims, and all Losses resulting from Claims, to the extent the Claims arise out of or relate to: (i) Customer’s or any User’s actual or alleged breach of this Agreement; (ii) Customer Data; or (iii) Customer’s or any User’s actual or alleged gross negligence or more culpable conduct. Customer shall not enter into any settlement or compromise in connection with any claim subject to indemnification under this Section 6(b) that requires Moneiva or any other indemnified party under this Section 6(b) to admit wrongdoing or liability, make any payments, comply with any ongoing affirmative obligations or comply with any restrictive covenants.
7. WARRANTY; DISCLAIMER; LIMITATION OF LIABILITY.
8. MISCELLANEOUS.
This Agreement: (a) is governed by, and will be interpreted, construed and enforced in accordance with, the laws of the State of Nebraska, without giving effect to the State of Nebraska’s conflict of laws rules; (b) is binding upon, and will inure to the benefit of, the Parties and their respective successors and permitted assigns; and (c) constitutes the sole and entire agreement of the Parties with respect to the subject matter herein, and supersedes all prior and contemporaneous written or oral negotiations, understandings, agreements, representations, and warranties, with respect to the subject matter herein. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion. This Agreement may be amended only by a written document signed by duly authorized representatives of each Party. Notwithstanding the preceding sentence, (i) Moneiva may modify this Moneiva Software as a Service Agreement (including any referenced policies and other documents) at Moneiva’s sole discretion; and (ii) the modified version of this Moneiva Software as a Service Agreement will be effective as to Customer upon the commencement of the Renewal Term immediately following the term during which Moneiva modifies this Moneiva Software as a Service Agreement. Customer may not, directly or indirectly, assign, transfer, or delegate any of or all of its rights or obligations under this Agreement, without the prior written consent of Moneiva. Any purported assignment or delegation in violation of this Section 8 shall be null and void. Each Party expressly consents to the exclusive jurisdiction of the federal, state and local courts in Omaha, Nebraska, to govern all disputes arising out of or relating to this Agreement. Notwithstanding the foregoing, either Party may seek injunctive relief against the other Party from any other judicial or administrative authority pending the resolution of such dispute. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE, CONTROVERSY, CLAIM OR LEGAL ACTION ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. If any legal action is brought to enforce this Agreement, the prevailing Party shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses. There are no third-party beneficiaries to this Agreement. All references to and mentions of the words “including”, “include” or “includes” shall be deemed to be followed by “without limitation.” “Or” is not exclusive. The following Sections shall survive termination or expiration of this Agreement (where reference is to a Section, all subsections are deemed to be included): 1(c), 1(d), 1(f), 2, 3(d), 4, 5, 6, 7(c), 7(d), 7(e), and 8, and any other provisions which by their nature should survive such termination or expiration. Moneiva shall not be liable for failure or delay in performing its obligations under this Agreement if such failure is a result of any event outside of the reasonable control of Moneiva.
Last Updated July 26, 2024
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