This agreement outlines the terms for LovShare, a Utah LLC, to provide the Customer with access to and use of specific cloud-based software-as-a-service offerings, referred to as “SAAS Products,” as identified in the relevant Order Form. The SAAS Products may also include updated versions provided as part of Maintenance and Support services.
The Order Form, used by the Customer to request SAAS Products, will be executed by both the Customer and LovShare (or its authorized resellers), and it is subject to the terms of this Agreement. The combination of the Order Form and this Agreement constitutes a legally binding contract between the Customer and LovShare.
1. Definitions “Accesses” or “User Accesses” means the aggregate number of times that all Users access the Customer website(s) which are enabled with the SAAS Product.
Accesses or User Accesses
Definition: The total count of all User accesses to Customer websites enabled with the SAAS Product. Each instance of a single User accessing a Customer website with the SAAS Product counts as a separate access.
Administrators:
Definition: Users designated by Customer responsible for administering the SAAS Product, issued Administrator logins by LovShare.
Affiliates
Definition: Entities connected to a party by control, whether directly or indirectly through ownership. Control is established through majority voting equity ownership.
Agreement
Definition: These terms and conditions, including Order Forms, Schedules, statements of work, or exhibits.
Customer
Definition: The entity that has executed an Order Form with LovShare.
Customer Data
Definition: Data provided to LovShare by Customer or its Users, processed and stored within Customer’s SAAS Product instance.
Customer Personal Data
Definition: Any Customer Data that qualifies as Personal Data.
Documentation:
Definition: Manuals published by LovShare, provided to Customer with the SAAS Product, excluding sales or marketing materials.
Free Trial
Definition: A SAAS Product offered to Customer for trial, at no charge, designated as “beta,” “trial,” “pre-GA,” etc.
Initial Term
Definition: The initial subscription term specified in the Order Form, excluding renewal terms.
Maintenance and Support
Definition: Services detailed in the “Maintenance and Support Guide” attached as Schedule B.
Order Form
Definition: LovShare’s order form specifying SAAS Product and/or Professional Services, executed by Customer and LovShare or an authorized reseller.
Personal Data
Definition: Information related to an identified or identifiable natural person.
Professional Services
Definition: Services provided by LovShare under an Order Form, excluding SAAS Products and Maintenance and Support services.
Term
Definition: The Initial Term specified in the Order Form and any renewal terms.
User
Definition: Any of the following:
“Internal Registered Users”: Employees and contract workers registered as authorized users of Customer websites.
“External Registered Users”: Individuals, excluding internal users, registered as authorized users of Customer websites.
“Guest User”: Individuals visiting Customer websites with the SAAS Product without a registered account.
2. General Terms of Access to the SAAS Product
2.1 License: LovShare grants Customer a non-exclusive, non-transferable license for Users to use the SAAS Product during the Term, subject to the terms, payment, and conditions in this Agreement and the Order Form. The use is limited to Customer’s internal business purposes. LovShare can invoice for additional fees if usage exceeds the licensed parameters, applying to the next billing cycle.
Example: If overuse happens in Year-1 of a 3-Year subscription with annual billing, increased fees apply for Year-2 and Year-3 but not retroactively to Year-1.
2.2 Customer Responsibilities: Customer and Users must comply with laws, including Privacy Laws, and won’t sell or sublicense the SAAS Product. Copying, reproducing, distributing, or attempting to access source code is not allowed. Accessing the SAAS Product must be through provided interfaces.
2.3 Service Level: LovShare’s commitment to SAAS Product availability is detailed in the attached “Service Level Agreement” (Schedule A).
2.4 Maintenance and Support: LovShare provides Documentation and online resources to assist in using the SAAS Product. Maintenance and Support services are detailed in the attached “Maintenance and Support Guide” (Schedule B).
2.5 Security and Privacy: a. LovShare maintains safeguards for SAAS Product and Customer’s Confidential Information. Professional Services ordered by Customer are performed according to LovShare’s practices. Implementation is typically remote unless specified otherwise.
3. Confidentiality
3.1 Confidential Information: Confidential Information includes the terms of this Agreement, each party’s proprietary technology, business processes, technical product information, and identified confidential information in writing. However, it excludes information that is public, known in the industry, becomes public without fault, is learned from a third party without non-disclosure obligations, is independently developed, or is aggregate data about LovShare’s products without personally identifiable or Customer-specific information.
3.2 Non-Disclosure Obligations: Each party agrees:
(a) to keep Confidential Information confidential,
(b) not to use or disclose it except as necessary for obligations under this Agreement or
as directed by the Disclosing Party,
(c) to protect it with the same care as its own confidential information, and
(d) to share it only with authorized persons on a “need-to-know” basis.
Either party may disclose Confidential Information to contractors and service providers who have agreed to maintain confidentiality. However, disclosure is allowed if required by law, court order, governmental authority, or regulation.
4. Ownership of SAAS Product; Marks
4.1 SAAS Product: Customer acknowledges that LovShare and its licensors exclusively own all intellectual property rights, title, and interest in the SAAS Product and Documentation, including updates and enhancements. The access license granted to Customer is time-limited and doesn’t provide any ownership or express rights in the SAAS Product. LovShare has a perpetual license to use suggestions or feedback provided by Customer.
4.2 Statistical Usage Data: LovShare owns statistical usage data derived from the SAAS Product, but it will be de-identified and presented in the aggregate. LovShare can use this Usage Data for its business operations.
4.3 Marks: LovShare’s service marks and trademarks are reserved rights. Customer must not display or use LovShare Marks without prior written permission. Third-party application provider marks are the property of those third parties, and Customer can’t use them without written consent.
5. Payment Terms – Taxes
5.1 Fees: Customer agrees to pay the fees specified in the Order Form within 30 days of receiving the invoice (“Fees”), unless stated otherwise. Payments are in U.S. dollars, and late payments (over 30 days) will incur interest at 1.5% per month or the legal maximum, whichever is less, from the due date to the payment date.
5.2 Taxes: All Fees in the Order Form don’t include taxes or duties. Customer is responsible for and must promptly pay all taxes and duties, excluding taxes based on LovShare’s income. This includes sales tax, use tax, value-added tax (VAT), or similar taxes related to this Agreement or the use of the SAAS Product. If Customer is tax-exempt, it must provide LovShare with necessary documentation to verify its tax-exempt status.
6. Warranties
6.1 Warranty of Functionality: LovShare warrants that the SAAS Product will achieve the functionality described in the applicable Documentation. If not, LovShare will make reasonable efforts to modify the SAAS Product. If unsuccessful, Customer can terminate the Agreement, and LovShare will refund any prepaid subscription fees for the remaining terminated portion of the Term. Notification of a functionality problem must be within six months of the first occurrence.
6.2 Professional Services Warranty: Professional Services provided by LovShare will be performed competently by qualified individuals.
6.3 No Virus Warranty: LovShare warrants that the SAAS Product will use an updated anti-virus application to detect and remove malicious code, excluding code from Customer-uploaded attachments.
6.4 Disclaimer: Except as expressly stated, LovShare doesn’t guarantee uninterrupted or error-free use of the SAAS Product, meeting all Customer requirements, or that the external system (Internet, networks, and Customer’s equipment) will be virus-free. The warranties in this Agreement are exclusive, and there are no other warranties, express or implied.
6.5 Free Trials: If Customer uses a Free Trial, LovShare provides it “AS IS.” LovShare has no representation, warranty, or indemnification obligations for a Free Trial. LovShare’s liability for a Free Trial is limited to US$1,000 unless exclusion of liability isn’t enforceable under applicable law. This limitation applies notwithstanding anything contrary in the “Limitation of Liability” section.
7. Limitation of Liability
7.1 General Limitation: Neither party is liable to the other or any third party for lost profits, revenue, or various indirect damages, regardless of the legal cause of action, such as breach of warranty, breach of contract, negligence, or other legal grounds, arising from or connected with this Agreement.
7.2 Maximum Liability: Except for Customer’s payments under this Agreement, the maximum liability of either party to the other or any third party, arising from this Agreement, including the use of the SAAS Product, won’t exceed the equivalent of 12 months in subscription fees for the relevant SAAS Product, subject to the claim.
8. Indemnification
8.1 LovShare Indemnity: LovShare, at its expense, will defend Customer against Claims alleging that the SAAS Product, used as per this Agreement, infringes third-party copyrights, trade secrets, patents, or trademarks. LovShare will indemnify Customer from liability, damages, and costs awarded or settled, excluding Claims arising from (a) SAAS Product misuse, (b) use after discontinuation notice, (c) modifications not by LovShare, or (d) use with non-LovShare software. LovShare can, at its option and cost, secure Customer’s right to use the SAAS Product, modify or replace it, or terminate the Agreement with a pro-rata refund of prepaid subscription fees. This section constitutes LovShare’s entire liability and Customer’s exclusive remedy for intellectual property infringement.
8.2 Indemnification Procedures and Survival: In case of potential indemnification, the indemnified party must: (i) promptly notify the indemnifying party in writing; (ii) allow the indemnifying party sole control of defense and settlement; and (iii) cooperate at the indemnifying party’s cost. The indemnification obligations depend on the indemnified party’s compliance and last for the later of the Claim conclusion or one year after Agreement termination.
9. Termination
9.1 Termination for Cause, Expiration: Either party can terminate this Agreement immediately if the other party commits a significant breach that isn’t cured within 30 days of written notice. The notice must detail the reasons for the alleged breach and be sent to the General Counsel of the breaching party.
9.2 Procedures upon Termination: Upon termination or expiration, Customer loses the right to use the SAAS Product. If termination results from Customer’s material breach, LovShare is entitled to all Fees for the entire Term. If termination results from LovShare’s material breach, Customer is entitled to a refund of the pro-rata portion of any prepaid subscription fees for the remaining terminated portion of the Term.
10. Suspension of the SAAS Product for Delinquent Account: LovShare can suspend Customer’s and any Customer Affiliates’ access to the SAAS Product if payment is due but unpaid. LovShare will provide at least two delinquency notices, and at least 45 days must pass since the first notice. LovShare isn’t liable to Customer, Customer Affiliates, or any third party for such suspension.
11. Suspension of the SAAS Product for Delinquent Account: LovShare can suspend Customer’s and any Customer Affiliates’ access to the SAAS Product if payment is due but unpaid. LovShare will provide at least two delinquency notices, and at least 45 days must pass since the first notice. LovShare isn’t liable to Customer, Customer Affiliates, or any third party for such suspension.
12. Governing Law: This Agreement is governed by the laws of the State of Utah, without considering conflict of law rules. Any dispute will be handled in a court located in Salt Lake County, Utah. The parties agree to the exclusive jurisdiction of such courts. All proceedings, including documents, will be in English, and the English version of this Agreement prevails over other language versions.
13. Dispute Resolution: Before filing a claim or suit with a federal or state agency or court, each party agrees to provide 30 days’ prior written notice to the other. During this period, authorized representatives will meet or confer in good faith to try to resolve the dispute.
