SOFTWARE AS A SERVICE (SaaS) SUBSCRIPTION AGREEMENT

This Software as a Service (SaaS) Subscription Agreement is a binding agreement made between Tignis, Inc. (“Tignis”) and you, the Customer (“You”, “Your”, or “Customer”), and governs Your use and access to certain Tignis Services according to the terms and conditions set forth below. All components, or terms and conditions, contained in this Agreement are integral to the Agreement and Customer consents to all of these terms and conditions. All components of this Agreement collectively are referred to herein as the “Agreement”. Customer acknowledges it has had the opportunity both to review the Agreement and to consult with legal counsel prior to acceptance of this Agreement. By accessing or using the Services, You acknowledge that You have read and understand this Agreement, that You accept all of the terms and conditions contained here in full, and that You agree that the terms and conditions will be fully and legally binding upon the Parties, upon clicking through. If You are acting on behalf of the Customer, You represent that You have full legal authority to bind the Customer. Tignis recommends that Customer print copies of the Agreement for Customer’s own records and future reference. If You choose not to agree to all of these terms and conditions, do not access and/or use the Tignis Services. Your access and/or use of the Tignis Services will constitute Your acceptance of all of the terms and conditions set forth in this Agreement. This Agreement is effective immediately upon Your completion of the Order Form (“Effective Date”).

1.Definitions
“Affiliate” will mean any entity that directly or indirectly controls, is controlled by, or is under common control with the entity named above.

“Control” for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the entity named above.

“Agreement” will mean this Software as a Service (SaaS) Subscription Agreement and any exhibits, schedules, addenda and associated Order Forms related hereto or otherwise submitted to Tignis in connection with the Services.

“Customer” will mean the customer under this Agreement which has submitted an Order Form in connection with the Services.

“Customer Data” will mean electronic data and information submitted by or for Customer for the Services.

“Documentation” will mean the Tignis Reference Manual and User Guide or any other services support documentation supplied by Tignis.

“Order Form” will mean an online order specifying the Services to be provided hereunder that is entered into between Tignis and Customer or otherwise submitted by Customer to Tignis, including any addenda and supplements thereto. By submitting or entering into an Order Form, Customer agrees such Order Form will be considered part of this Agreement and further agrees to be bound by all the terms and conditions of this Agreement.

“Services” will mean the services which Tignis agrees to provide under this Agreement that are ordered by Customer through an online Order Form, namely access to the Services and any other services specified in this Agreement or made available online by Tignis. 

“Tignis Materials” will mean any software, programs, tools, systems, data or other materials made available by Tignis to Customer in the course of the performance of the Services, including but not limited to, the Services, documentation, as well as any information, materials or feedback provided by the Customer to Tignis relating to the Services, and Documentation

2. Restrictions and Responsibilities
2.1 Customer will not sell, resell, license, sublicense, distribute, make available, rent or lease any Service, or use the Services for timesharing or service bureau purposes.

2.2 Customer will not directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Tignis Materials; modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Tignis or authorized within the Services); or remove any proprietary notices or labels.

2.3 Customer will not use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights.

2.4 This Agreement is subject to and conditioned upon compliance with the U.S. Export Administration Regulations, the International Traffic of Arms Regulations, country specific economic sanctions programs implemented by the Office of Foreign Assets Control, and the applicable regulations thereunder (collectively, the “U.S. Export Laws”). Customer may not remove or export from the United States or allow the export or re-export of the Services, or anything related thereto, or any direct product thereof 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. For clarity, the Customer will be solely responsible for compliance related to the manner in or by which the Customer chooses to use the Services, including the transfer and processing of any content, the provision of Customer’s content to end users, and the on-line region in which any of the foregoing occurs.

2.5 Customer represents, covenants, and warrants that Customer will use the Services only in compliance both with this Agreement and with all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Tignis against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of the Services. Although Tignis has no obligation to monitor Customer’s use of the Services, Tignis may do so, and Customer hereby authorizes Tignis to do so. Tignis may prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.

2.6  Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including without limitation, hardware, software, networking, and the like. Customer will also be responsible for maintaining the security of Customer’s account, passwords and files and for all uses of Customer’s account with or without Customer’s knowledge or consent, and Customer hereby acknowledges and agrees that Tignis will have no responsibility for such matters.

2.7 Customer owns and accepts all responsibility for any data, information or material that Customer and its users process or submit to the Service in the course of using the Service, including any personally identifiable information (Customer Data). Customer agrees to separately back up all Customer Data. Customer at all times retains ownership of all Customer Data. Customer, and not Tignis, will have sole responsibility for the accuracy, quality, security, integrity, legality, reliability, appropriateness, and intellectual property rights in all Customer Data. Customer warrants that it has the right to provide Customer Data to Tignis. Customer will provide notices to, and obtain any consents from, third parties as required by applicable law, rule or regulation in connection with Tignis’ processing of Customer Data via the Service. Customer will not process or submit to the Service any Customer Data that includes any “protected health information,” as defined under the Health Insurance Portability and Accountability Act, or Personal Data as defined under the EU Directive 95/46/EC as enacted in the member states of the European Union or any similar or subsequent regulation.

3. Confidentiality and Proprietary Rights
3.1 The Mutual Non-Disclosure Agreement between the parties dated April 19, 2018 is hereby incorporated by reference.

3.2 Customer acknowledges and agrees that the Tignis Materials are and will at all times be and remain the sole and exclusive property of Tignis and Tignis’ third party licensors, subject only to the rights granted to Customer in this Agreement. Tignis retains all right, title and interest in and to the Tignis Materials. Customer does not and will not be deemed to acquire any right, title or interest therein, except as expressly granted in this Agreement. Further, Customer does not and will not be deemed to acquire any right, title or interest in any patent(s), copyrighted material, or other intellectual property, or proprietary information or data, owned by Tignis Corporation and /or any of its subsidiaries or affiliates.

3.3 Customer will own all right, title and interest in and to the Customer Data  as part of the Services.

3.4 Notwithstanding anything to the contrary, Tignis will have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Tignis will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Tignis offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth in this Agreement.

4. Payment of Fees
4.1 Customer will pay all Fees specified in all Order Forms pursuant to this Agreement. Except as otherwise specified in this Agreement or in an Order Form, (i) Fees are based on a flat fee, (ii) payment obligations are non-cancelable and Fees paid are non-refundable, and (iii) the Fees cannot be decreased during the relevant subscription term stated on the applicable Order Form. 

4.2 Payment Terms.
All payments under this Agreement will be made within fifteen (15) days after the Receipt of the applicable invoice. All amounts are payable in United States dollars unless specified otherwise on the Order Form or SOW. Any amounts not paid when due will accrue interest at the lesser of one and one half percent (1.5%) per month (19.57% annually) or the maximum rate allowed by law.   

5. Term and Termination
5.1 This Agreement commences on the Effective Date and continues for 12 months.

5.2 The Term of this Agreement and each Service will be as specified in the applicable Order Form.  

5.3 Either party may also terminate this Agreement upon 30 days written notice if the other party materially breaches any of the terms or conditions of the Agreement and fails to correct the breach within the notice period. 
Customer will pay in full for the Services up to and including the last day on which the Services are performed.

5.4 Upon any termination and upon Customer request, Tignis will make all Customer data available to Customer for electronic retrieval for a period of 30 days, but thereafter Tignis may delete or destroy all copies of Customer data in its systems or otherwise in its possession or control.

5.5 The following sections will survive any termination or expiration of this Agreement: 2.2, 2.7, 3, 4, 5, 7, 8 and 9.

6. Support
6.1 Subject to the SaaS Agreement and the Order Form, Tignis, Inc. will provide unlimited in-product and email support (“Support”).  Although no response times are guaranteed, Tignis, Inc. will use commercially reasonable efforts to respond to such support requests within the following parameters:
1.	Initial response: 1 to 2 business hours.  Monday through Friday, 9 am - 5 pm Pacific.
2.	Subsequent responses:  2 to 3 business days, Monday through Friday, 9 am - 5 pm Pacific.
In the event any Support is not performed with reasonable skill, care and diligence, Tignis, Inc. will re-perform the Support to the extent necessary to correct the defective performance, and Customer acknowledges that re-performance shall be Customer’s sole and exclusive remedy for any defective performance.
7. Warranty and Disclaimer
7.1 Tignis will use reasonable efforts consistent with prevailing industry standards to provide and maintain the Services in a manner which minimizes errors and interruptions in the Services. Customer acknowledges that the Services may be temporarily unavailable due to scheduled maintenance or for unscheduled emergency maintenance, either by Tignis or by third-party providers, or because of other causes beyond Tignis’ reasonable control. Where reasonably possible, Tignis will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

7.2 TIGNIS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES TIGNIS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND TIGNIS DISCLAIMS ALL WARRANTIES OF ANY TYPE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8. Limitation of Liability and Limitation on Damages
IN NO EVENT WILL TIGNIS OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OF GOOD WILL, LOSS OF DATA OR USE, OR ANY BUSINESS INTERRUPTION OR DISRUPTION, INCURRED BY EITHER CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION SOUNDING IN CONTRACT, TORT, WARRANTY, FIDUCIARY DUTY, STATUTORY CLAIM UNDER ANY FEDERAL, STATE, LOCAL LAW OF THE UNITED STATES OF AMERICA OR ANY OTHER JURISDICTION, OR ANY OTHER TYPE OF LEGAL CLAIM, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.FURTHER, NEITHER TIGNIS NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, LOSSES, COSTS OR DAMAGES ARISING IN CONNECTION WITH: (A) CUSTOMER’S INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SERVICES, (II) TIGNIS’ DISCONTINUATION OF ANY OR ALL ACCESS TO THE SERVICES, OR (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE
ACCESS TO THE SERVICES FOR ANY REASON WHATSOEVER, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER TO ANY THIRD PARTIES IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, DENIAL OF ACCESS, OR FAILURE TO MAINTAIN OR STORE ANY OF CUSTOMER’S CONTENT OR OTHER DATA. THE AGGREGATE AND CUMULATIVE TOTAL LIABILITY OF TIGNIS OR ITS SUPPLIERS FOR DAMAGES, INCLUDING FOR DIRECT DAMAGES, UNDER THIS AGREEMENT WILL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THIS AGREEMENT THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM, AND IF SUCH DAMAGES RELATE TO PARTICULAR SERVICES, SUCH LIABILITY WILL BE LIMITED TO FEES PAID FOR THE SERVICES GIVING RISE OR RELATED TO THE ALLEGED LIABILITY AND DAMAGES UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE CLAIM. LICENSEE ACKNOWLEDGES THAT THE FEES APPLICABLE FOR THE SERVICES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT TIGNIS WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF BOTH LIABILITY AND DAMAGES SET FORTH IN THIS AGREEMENT (INCLUDING THOSE SET FORTH ABOVE IN THIS SECTION 8 AND IN SECTION 9.2 BELOW).

9. Miscellaneous
9.1 This Agreement and the associated Order Forms will not be assignable by Customer without the prior, written consent of Tignis. Any assignment or transfer by Customer in violation of this Section will be void. This Agreement may be assigned or transferred by Tignis.

9.2 No Liability for Certain Delays or Failures of Performance.
Tignis and its Affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms, floods, or other elements of nature, blockages, embargoes, riots, cyber attacks (including without limitation distributed denial of service attacks, malware, ransomware, and any other cyber events), acts or orders of government, acts of terrorism, or war.

9.3 If any term or provision of this Agreement will be determined by a court of competent jurisdiction to be invalid, the remaining terms and provisions will remain in effect.

9.4 Tignis may modify this Agreement at any time by posting a revised version on its website  or by otherwise notifying the Customer in accordance with Section 9.5. The modified terms will become effective upon posting or, if Tignis notifies the Customer by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to this Agreement, Customer agrees to be bound by the modified terms. It is the Customer’s responsibility to check the referenced websites regularly for modifications to this Agreement. The current Agreement and Order Form, with priority being given to the Order Form, will prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Customer to Tignis.

9.5 Any notice, report or statement required to be given or made hereunder will be considered properly given if sent by email, or registered or certified mail, return receipt requested, postage-paid to the respective address of each party as either of the parties will have last furnished in writing to the other.

9.6 Customer will not, without Tignis’ express prior written permission, use any trade name, trademark or other identification (or any abbreviation, contraction or simulation thereof) owned or used by Tignis in any advertising, publicity, or marketing.

9.7 This Agreement will be construed in accordance with the laws of the State of Washington without reference to conflict of law rules. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.

9.8 Binding Arbitration, Waiver of Right of Jury Trial, and Waiver of Rights of Class, Consolidated or Representative Actions. Any dispute or claim relating in any way to the Customer’s use of the Services will be resolved by binding arbitration, rather than in court, except that Customer may assert claims in small claims court if the claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. 

9.9 This Agreement and any exhibits, attachments or other documents related thereto (including any related Product Registration Form) constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all previous agreements whether written or oral.