Software as a Service Agreement

SaaS Agreement

These Terms constitute an agreement (this “Agreement”) by and between P360, Inc., a California corporation with principal offices at 120 Newport Center Drive, Newport Beach, CA 92660 ("Provider") and Customer ("Recipient").

Definitions
1. "Account" refers to the Service plans and features provided thru customer portal at the time of enrollment and accepted by Provider
2. "AUP" refers to Provider's Acceptable Use Policy as made available in this agreement
3. "Authorized Representative" refers to authorized employees of Recipient.
4. "Effective Date" refers to the date of commencement of the Service as may be noted in any referenced agreement or Addendum 1
5. "Materials" refers to any written and graphical content provided by or through the Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by Provider, another customer of the Service, or any other third party.
6. "Recipient Data" refers to data in electronic form input or collected through the Service by or from Recipient
7. "Service" refers to Provider’s Mosaic Loan Intelligence software service
8. "SLA" refers to Provider’s service level agreement as made available on website
Service & Payment
1. Service. Provider will provide the Service to Recipient pursuant to its standard policies and procedures then in effect.
2. Payment. Recipient will pay Provider such Service fees as are required in Recipient’s Account, due on the day of the start of the calendar month of Service as provided for in any referenced agreement or Addendum or as further documented therein
Service Level Agreement
In the event of any “Service Failure,” Provider will issue Recipient such credits as are required under the SLA. Credits issued apply to outstanding or future payments only and are forfeited upon termination of this Agreement. Provider is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation termination of this Agreement. Credits issued are Recipient’s sole remedy for the Service Failure in question. The SLA is hereby incorporated into this Agreement.
Materials, Software, and IP
1. Materials. Recipient recognizes and agrees that: (i) the Materials are the property of Provider or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) Recipient does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Recipient’s use of the Service.
2. IP in General. Provider retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all logos and trademarks reproduced through the Service, and this Agreement does not grant Recipient any intellectual property rights in or to the Service or any of its components.
3. Feedback. If you provide any feedback, comments, suggestions, ideas, description of processes, or other information to us about or in connection with the Products or Services, including without limitation any ideas, concepts, know-how or techniques contained therein ("Feedback"), then you grant us a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, without any compensation to you or any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed your Confidential Information, and nothing in this agreement limits P360's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
AUP (Acceptable Use Policy)
Recipient will comply with the AUP. In the event of Recipient’s material breach of the AUP, including without limitation any copyright infringement, Provider may suspend or terminate Recipient’s access to the Service, in addition to such other remedies as Provider may have at law or pursuant to this Agreement. Neither this Agreement nor the AUP requires that Provider take any action against Recipient or any other customer for violating the AUP, but Provider is free to take any such action it sees fit.

The acceptable use of Mosaic Software-as-a-Service is for the purposes set forth in the applicable Agreement for Services between P360 (Provider) and its customer (Recipient), or other authorized user. An authorized user's right to use the Services is non-exclusive and subject to compliance with the terms and conditions of this AUP, as posted or published on P360's website www.p360inc.com. Provider may amend this AUP in its sole discretion from time to time. The continued use of the Services after a revised AUP has been posted on Provider’s website will be deemed acceptance of this AUP. All Intellectual Property including but not limited to the software, design, code and all related materials is that of the Provider.

The following practices are strictly prohibited by Provider, whether by customer, Recipient or other authorized user:

Using the Services for any unlawful, invasive, infringing, defamatory, or fraudulent purpose; Using the Services to send unsolicited bulk commercial email ("Junk Email") of any kind, regardless of the content or nature of such messages; Intentionally sending any virus, worm, Trojan horse or harmful code or attachment with the Services; Interfering with the use of the Services by Provider 's customers and/or other authorized users; Altering, tampering with or circumventing any aspect of the Services; Reselling, passing-through, renting, leasing, timesharing, sublicensing, transferring, assigning or branding the Services or otherwise providing the Services, or access to the services or software, to any party which is not contractually and expressly authorized by Provider to receive the Services or obtain access to the software; Testing or reverse-engineering the Services in order to find limitations, vulnerabilities or evade filtering capabilities; Supplying proprietary information about the Software or Services, including but not limited to screen shots, product documentation, demonstrations, service descriptions, announcements, or feature roadmaps to unauthorized third parties; Using the Services in a manner not authorized, including use of any features that filter electronic messages for users where an account on Provider service has not been established (except as may be permitted in writing by Provider).

If a customer, Recipient, authorized user or other third party violates any of the foregoing prohibitions, Provider may immediately suspend or limit the Services, terminate the applicable Provider services agreement without further liability or obligation to Customer and/or Recipient and/or take all other action as legally or contractually permitted. As between Provider and customer, all intellectual property and proprietary rights relating to the Services, including but not limited to any specifications, interfaces, protocols and configurations related to the Services, shall belong solely and exclusively to Provider.
Privacy Policy
The Privacy Policy applies only to the Service and does not apply to any third party site or service linked to the Service or recommended or referred to through the Service or by Provider’s employees.
Each Party's Warranties
1. Recipient's Identity. Recipient warrants: (i) that it has accurately identified itself through its Account and will maintain the accuracy of such identification; and (ii) that it is a corporation or other business entity authorized to do business pursuant to applicable law or an individual 18 years or older.
2. Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
3. Disclaimers. Except for the express warranties specified in this section 4, the Service is provided “as is” and as available, and provider makes no warranties, either express or implied, including without limitation any implied warranties of merchantability, fitness for a particular purpose, or non-infringement of intellectual property rights. Without limiting the generality of the foregoing, (i) provider has no obligation to indemnify or defend recipient against claims related to infringement of intellectual property rights; and (ii) provider does not warrant that the service will perform without error or immaterial interruption.
Limitation of Liability
In no event: (a) will Provider’s liability arising out of or related to this agreement exceed one month’s service fee; and (b) will Provider be liable for any consequential, indirect, special, incidental, or punitive damages. The liabilities limited by this section 7 apply: (i) to liability for negligence; (ii) regardless of the form of action, whether in contract, tort, strict product liability, or otherwise; (iii) even if provider is advised in advance of the possibility of the damages in question and even if such damages were foreseeable; and (iv) even if recipient’s remedies fail of their essential purpose. If applicable law limits the application of the provisions of this section 7, Provider’s liability will be limited to the maximum extent permissible.
Data Management
1. Access, Use, & Legal Compulsion. Provider will give Recipient prompt notice of any legal or governmental demand and reasonably cooperate with Recipient in any effort to seek a protective order or otherwise to contest such required disclosure, at Recipient’s expense.
2. Recipient's Rights. Recipient possesses and retains right, title, and interest in and to Recipient Data, with the exception to aggregate and non-identifiable data which Provider has the right to use during and after the service for any business purpose, and Provider shall own and retain right, title and interest to any work, work product or other intellectual property derived from such data.
3. Retention & Deletion. Provider will retain all Recipient Data for at least 30 business days after termination of services unless otherwise agreed in writing.
Term & Termination
1. Term. This Agreement will continue on a monthly basis unless expressly noted in a related Agreement for Services. Thereafter, any expressed agreement may renew for subsequent terms unless either party notifies the other of its intent not to renew 30 or more days before the beginning of the next Term.
2. Termination for Cause. Either party may terminate this Agreement for material breach by written notice, effective in 30 days, unless the other party first cures such breach within 20 days of written notice of such termination request.
3. Effects of Termination. The following provisions will survive termination of this Agreement: (i) any obligation of Recipient to pay for Service rendered before termination; (ii) Sections 4, 5(b), 6(c), and 7 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
Miscellaneous
1. Notices. Provider may send notices pursuant to this Agreement to Recipient’s contact points listed in Recipient’s Account, and such notices will be deemed received 3 business days after they are sent. Recipient may send notices pursuant to this Agreement to Provider, and such notices will be deemed received 3 business days after they are sent.
2. Amendment. Provider may amend this Agreement (including the SLA, AUP and Data Policy) from time to time by posting an amended version at its website and Provider shall notice Recipient of any material changes thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Recipient first gives Provider written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Recipient’s next Term following the Proposed Amendment Date (unless Recipient first terminates this Agreement pursuant to Section 9 above). Recipient’s continued use of the Service following the effective date of an amendment will confirm Recipient’s consent thereto. This Agreement may not be amended in any other way except through a written agreement executed by Authorized Representatives of each party. Notwithstanding the foregoing, Provider may amend this AUP, SLA or Privacy Policy at any time by posting a new version at its website and sending Recipient notice of any material changes thereof, and such amended version will become effective 30 days after such notice is sent.
3. Independent Contractors. The parties are independent contractors unless otherwise agreed, and will so represent themselves in all regards. Neither party is the agent of the other; and neither may bind the other in any way.
4. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
5. Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
6. Assignment & Successors. Recipient may not assign this Agreement or any of its rights or obligations hereunder without the Provider’s express written consent, except that Recipient may assign this Agreement to the surviving entity in a merger of the recipient into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
7. Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of California, without reference to such State’s principles of conflicts of law.
8. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
9. Certain Notices. Pursuant to 47 U.S.C. Section 230(d), Provider hereby notifies Recipient that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. Information regarding providers of such protections may be found on the Internet by searching “parental control protection” or similar terms.
10. Conflicts among Attachments. In the event of any conflict between the terms of this main body of this Agreement and those of the SLA or Data Policy, the terms of this main body will govern unless expressly noted in separate Services Agreement that makes reference to the terms and policies posted on Provider’s website.
11. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.

Mosaic Software as a Service Agreement (SaaS) Agreement 201702