CoActiveSoft LLC. Software as a Service (SaaS) License Agreement

This software subscription and service agreement (“Agreement“) is made and entered into by and between COACTIVESOFT (“Provider”), and its client (“Client“). This Software Subscription Service Agreement (the “Agreement”) sets forth the obligations and conditions between Client and COACTIVESOFT, LLC, a Washington limited liability Company, relating to Client’s use of the Serviced defined herein. The effective date of the Agreement is referred to herein as the (“Effective Date”). Please read this Agreement carefully. Your use of the Services is expressly conditioned on your acceptance of this Agreement.

Provider and Client hereby agree as follows:

  1. Software and Services a. Provider shall grant to Client access the Home Service Planning and Management software (the “Software”) as further identified in Exhibit A. Provider shall deliver to Client user accounts and passwords for Client’s use of the Software. The date of such delivery shall be referred to as the “Delivery Date”. b. Provider’s delivery of the Software is a subscription to use and access the software, and shall not constitute an agreement of sale. No title, patent, copyright, trademark, trade secret, intellectual property, or other ownership rights of Provider are transferred to Client. c. Provider hereby grants to the Client a non-exclusive, non-transferable right to permit the Authorized Users to use the Services during the Subscription Term solely for the Client’s internal business operations. d. Subject to the terms of this Agreement, Provider will use commercially reasonable efforts to provide Client the Services Provider shall provide support services for the Software as set forth in Exhibit A (“Support Services”). Provider shall provide Support Services beginning on the Delivery Date and continuing throughout the term of this Agreement as described in Exhibit A. Thereafter, Client may renew the Support Services by payment to Provider of the fees set forth in Exhibit B, attached and incorporated for all purposes. e. Provider shall provide implementation and training services as set forth in Exhibit B (“Implementation Support and Training”). f. Provider shall provide the Software, Implementation Support and Training, and continuing Support Services (the “Services”) in accordance with the terms, requirements and specifications contained in this Agreement and its attachments.
  2. Fee Rates
    a. Client agrees they will pay Client in accordance with the fees set forth in Exhibit B.
  3. Payment Terms
    a. Client will pay Provider the then applicable fees described in this Agreement for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Client (which may be sent by email). If Client believes that Provider has billed Client incorrectly, Client must contact Provider no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.b. Provider may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
  4. Client’s Representations and Warranties
    In relation to the Authorised Users, the Client undertakes that:
    a. Client 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 software, documentation or data related to the Services and/or Software; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Provider or authorized within the Services); b. Client represents, covenants, and warrants that Client will use the Services only in compliance with Provider’s standard use and all applicable laws and regulations, including but not limited to Health Insurance Portability and Accountability Act and the requirements contained therein regarding health care information. Client hereby agrees to indemnify and hold harmless Provider 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 Client’s use of Services. c. The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Provider. d. Client understands that it is Client’s sole responsibility to ensure that all Client data is properly secured and/or backed-up. Client data backup and/or security is not a service under this agreement. Client agrees to hold Provider harmless in the event that Client data is lost and unable to be retrieved. e. Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent.
  5. Services of Provider
    a. The Provider shall, during the Subscription Term, provide the Services a to the Client on and subject to the terms of this agreement.b. The Provider shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
    i. Planned maintenance carried out during the maintenance window of [10:00 pm to 2:00 am Pacific time]; and
    ii. Unscheduled maintenance performed outside Normal Business Hours, provided that the Provider has used reasonable endeavours to give the Client at least four 4 Normal Business Hours’ notice in advance.c. The Provider will, as part of the Services and at no additional cost to the Client, provide the Client with the Provider’s standard Client support services during Normal Business Hours in accordance with the Provider’s Support Services descried herein. The Provider may amend the Support Services in its sole and absolute discretion from time to time. d. Provider warrants to Client that it has the full legal right to grant to Client the right to use the software under this Agreement, and that the Software, Client when used in accordance with the terms of this Agreement, do not infringe upon any United States patent, copyright, trade secret or other proprietary right of any Person.e. Exceptions and Disclaimer. Provider shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Provider or by third-party providers, or because of other causes beyond Provider’s reasonable control, but Provider shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. FURTHER, PROVIDER MAKES NO WARRANTY OF SOFTWARES COMPLIANCE WITH HIPAA; IT IS THE SOLE RESPONSIBLILITY OF CLIENT TO ENSURE THAT USE OF SOFTWARE DOES NOT VIOLATE HIPAA. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
  6. Proprietary Information and Confidentiality
    a. Confidential Information of Provider. Client agrees that Provider’s software contains proprietary information, including trade secrets (“Proprietary Information”), that are the exclusive property of Provider. Client and its employees and agents shall maintain the confidentiality of such Proprietary Information and not sell, license, publish, display, distribute, disclose or otherwise make available such Proprietary Information to any competitor of Provider nor use such Proprietary Information except for Client’s or the Client’s internal purposes in accordance with the terms of this Agreement. Title to all of Provider’s proprietary information and all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights of Provider shall be and remain exclusively with Provider, even with respect to such items that were created by Provider specifically for or on behalf of Client. This obligation of non-disclosure and non-use shall be effective during the term of this Agreement and for a period of three (3) years following the expiration or termination of this Agreement. It is acknowledged and agreed that the potential harm to Provider of any breach of this confidentiality obligation cannot be adequately compensated by money damages. Thus, to the extent authorized by the Constitution and laws of the State of Washington, Provider shall be entitled to seek and obtain equitable and injunctive relief in the event of a breach or threatened breach of the confidentiality obligations.b. Confidential Information of Client. Provider agrees that all information concerning Client’s affairs, its trade secrets, teaching methods and techniques, development and donation information or processes, tracking methods or requirements (collectively “Data”), which Provider may learn while performing service hereunder shall neither be disclosed by Provider nor used by Provider for any purpose other than on behalf of and in furtherance of Client’s business interests in accordance with the terms of this Agreement. Without the prior, written content of Client, to be granted or withheld in its sole discretion, Provider shall not disseminate or divulge the Data to any person or entity, other than as set forth herein. Provider shall limit access to the Data to such persons who have a need for access to the Data for the purpose of developing, upgrading, maintaining, servicing, installing or providing technical support in connection with completing Provider’s requirements under this Agreement. This obligation of non-disclosure and non-use of Data shall be effective during the term of this Agreement and shall remain in force following the expiration or termination of this Agreement.
  7. Indemnification
    a. Client. To the extent authorized by the constitution and laws of the State of Washington, Client agrees to indemnify and hold harmless Provider, its agents, officers and employees from and against any liability, cost or expense, arising out of or associated with any claim for damages and/or personal injury, including death therefrom, to any person, or property damage or loss, (collectively, “Claims”), arising solely from Client’s negligent acts, omissions or willful misconduct in connection with Client’s obligations under this Agreement. Provided however, Client shall not indemnify, defend or hold harmless Provider from and against any liability, cost or expense arising out of the negligent acts or omissions or willful misconduct of Provider or the independent acts of third parties not affiliated with Client.b. Provider. To the extent authorized by the constitution and laws of the State of Washington, Provider shall indemnify, defend and hold harmless the Client and its agents, officers and employees (the “Indemnified Parties”) from and against any Claims arising solely from Provider’s negligent acts or omissions or willful misconduct. Provided however, that Provider shall not indemnify, defend or hold harmless the Indemnified Parties from and against any liability, cost or expense arising out of the negligent acts or omissions or willful misconduct of the Indemnified Parties or the independent acts of third parties not affiliated with Provider.
  8. Limitations on Consequential Damages

    NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, PROVIDER AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND PROVIDER’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO PROVIDER FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  9. Term and Default
    a. The Term of this Agreement shall commence on the Effective Date and shall continue until terminated as provided herein. The term will consist of monthly periods (each a “Subscription Period”). The Agreement shall automatically renew for subsequent Subscription Periods unless either party provides written notice of its election not to renew this Agreement at least thirty (30) days prior to end of the then current Subscription Period or otherwise terminates this Agreement pursuant to the terms of this Agreement. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Client shall immediately terminate, and the Client shall cease using the Services and shall prohibit Authorized Users from using the Services.b. Client shall be in default of this Agreement if Client fails to make any payment when due and fails to cure said default within five (5) days after receipt of written notice thereof from Provider. In addition to the monetary breach described in the previous sentence, either party will be in default of this Agreement if the party is in material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice thereof from the non-breaching party. If a party is in default, the non-breaching party may terminate this Agreement or seek any other remedies available at law or in equity, except as otherwise provided in this Agreement. In the event Client breaches or attempts to breach any of the provisions of this Agreement, Provider shall have the right, in addition to such other remedies that may be available, to injunctive relief enjoining such breach or attempt to breach, Client hereby acknowledging the inadequacy of any remedy at law.
  10. Relationship of the Parties

    For all purposes of this Agreement and notwithstanding any provision of this Agreement to the contrary, Provider is an independent Contractor and is not, partner, joint venture, or agent of Client. Provider will not bind nor attempt to bind Client to any agreement or contract. As an independent contractor, Provider is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any sort, including but not limited to workers’ compensation insurance.
  11. Miscellaneous
    a. Governing Law. This Agreement and all of the rights and obligations of the parties hereto and all of the terms and conditions hereof shall be construed, interpreted and applied in accordance with and governed by and enforced under the laws of the State of Washington.b. Entire Agreement; Modifications. This Agreement supersedes all prior agreements, written or oral, between Provider and Client and will constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement. PROVIDER RESERVES THE RIGHT TO CHANGE THE TERMS OF THIS SAAS LICENSE AGREEMENT FROM TIME TO TIME. SUCH CHANGES WILL BECOME EFFECTIVE WHEN PROVIDER POSTS THE REVISED TERMS OF USE AS PART OF THE SERVICE OR ON ANY RELATED WEBSITE. THE MOST CURRENT VERSION OF THE TERMS OF USE CAN BE REVIEWED BY CLICKING ON THE “SAAS LICENSE AGREEMENT” HYPERTEXT LINK LOCATED IN THE COACTIVESOFT HOME PAGE. USERS SHOULD CHECK THE TERMS OF USE FROM TIME TO TIME, AS THEY ARE BOUND BY THE TERMS OF USE SO POSTED FROM AND AFTER THE TIME THE CHANGES ARE POSTED. ANY REVISED TERMS OF USE SHALL SUPERSEDE ALL PREVIOUS VERSIONS.c. Force Majeure. Neither party hereto will be liable or responsible to the other for any loss or damage or for any delays or failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, strikes, epidemics, war, riots, flood, fire, sabotage, or any other circumstances of like character.d. Captions. The captions of sections and subsections in this Agreement are for convenience only and will not be considered or referred to in resolving questions of interpretation or construction.e. Waivers. No delay or omission in exercising any right accruing upon a default in performance of this Agreement will impair any right or be construed to be a waiver of any right. A waiver of any default under this Agreement will not be construed to be a waiver of any subsequent default under this Agreement.
    f. Severability. In case any provision of this Agreement will, for any reason, be held invalid or unenforceable in any respect, the invalidity or unenforceability will not affect any other provision of this Agreement, and this Agreement will be construed as if the invalid or unenforceable provision had not been included.

Client and Provider have executed and delivered this Agreement to be effective as of the Effective Date.

Attach:

EXHIBIT A – Software and Support Services
EXHIBIT B – Implementation & Training Schedule
EXHIBIT C – Fees for Software & Services

EXHIBIT A

SOFTWARE AND ANNUAL SUPPORT SERVICES

Provider will provide to Client the following Software and Support Services in accordance with the terms of this Agreement:

  1. Software
    CoActiveSoft will provide the Customer access to its software for Home Service Planning and Management, as these services become available. The software consists of the following services:Customer Relationship Management (CRM) Service
    The CRM application allows customers to enter contact information for all clients, employees, etc. Depending on the contact type, users can enter additional information, such as medication schedules for patients, financial information for customers, certifications for employees, etc. Contacts can be associated with one another to provide the client with a complete picture of what contacts are associated with a particular case.
    A customer’s contact information can be shared with an employee to facilitate the exchange of information.Task Management
    The task management application allows users to assign tasks that have to be performed for customers to the appropriate employee. Completed tasks can be converted to log items to keep a record of the performed services.Scheduling Service
    The scheduling application allows users to schedule employees to provide services to customers. Customers and employees have access to their schedules, allowing them to suggest schedule changes or correct schedules. The client can use (validated) schedules as input to create invoices to their customers.Invoicing Service
    The invoicing application allows users to create invoices to their customers from validated employee work times or project fees. Invoices can be automatically split between payers, and can be imported into QuickBooks Online.Document Management Service
    The document management application allows Customer to create or upload documents, including contracts and care plans, and associate these documents with customers and employees. The software stores these documents online.
  2. Support Services
    2.1 – Provider shall supply customer support via telephone and electronic mail during business hours (see 2.2)2.2 – Support Service shall be provided during business hours, weekdays from 8:00 AM to 5:00 PM Pacific Time, with the exception of federal holidays.2.3 – Support and software updates shall be provided for the current and immediate previous major releases.

EXHIBIT B

IMPLEMENTATION SUPPORT AND TRAINING SCHEDULE

  1. Overview of Implementation and Training
    Provider will provide all necessary implementation and training services to deliver a fully functional SaaS System.
  2. Specific Implementation Support Services
    Provider will assist client in entering all relevant data to make the system functional. To use this implementation support service, client must supply all customer and employee data to be entered. Once all data for all existing customers, and employees is entered, entering any further data becomes the client’s responsibility.
  3. Specific Training Requirements
    Provider will provide training via phone or internet based teleconference when requested by client.

 

EXHIBIT C

FEES FOR SOFTWARE AND SERVICES

  1. Software, Including Related Documentation

 

Standard

$8.00 per client per month

1-200
Employees

30-Day
Free Trial Period

Free
training

Free
phone & email support

Free
upgrades