WHATFIX SOFTWARE AS A SERVICE AGREEMENT

This Software as a Service Agreement (“SaaS Agreement” or “Agreement”) is entered into between [Whatfix

Limited] and its affiliates (“Whatfix”), a company organized and existing under the laws of England and having

its principal place of business at c/o TMF Group, 8th Floor, 20 Farringdon Street, London EC4A 4AB, United

Kingdom and __________(insert name of the Company) a company organized and existing under the laws of

[insert] with its principal place of business at _________(insert address of the Company) (“Customer”) on

___________, 2020 (“Effective Date”). Whatfix and Customer agree that the following terms and conditions

will apply to the services provided under this Agreement and Orders placed thereunder.

1. DEFINITIONS

videos.

1.5. “Data Protection Legislation” means Regulation (EU) 2016/679 of the European Parliament and of the

Council of 27th April 2016 on the protection of natural persons with regard to the processing of Personal

Data and on the free movement of such data (General Data Protection Regulation) as it forms part of the

law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union

(Withdrawal) Act 2018 and all other applicable data protection and privacy legislation in force from time

to time including the EU General Data Protection Regulation (EU) 2016/279 and the Data Protection Act

2018, which apply to the processing of Personal Data pursuant to this SaaS Agreement.

1.6. “Documentation” means the user guides, online help, release notes, training materials and other

documentation provided or made available by Whatfix to Customer regarding the use or operation of the

1.9. “Intellectual Property Rights” means all (i) copyrights (including, without limitation, the right to

reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works),

copyright registrations and applications, trademark rights (including, without limitation, registrations and

applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author’s rights,

privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and

all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the

United States Kingdomor any other state, country or jurisdiction; (ii) intangible legal rights or interests

evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or

improvement, regardless of patentability, but including patents, patent applications, trade secrets, and

know-how; and (iii) all derivatives of any of the foregoing.

1.13.“Professional Services” means consulting, implementation or other services that may be provided by

Whatfix to Customer hereunder and that may involve analysis, development, technical support, integration,

and training, as set forth in more detail in the SOW or Order Form.

1.14.“Software” means the object code version of the Digital Adoption Platform (DAP) software to which

Customer is provided access as part of the Service, including any updates or new versions under the brand

name “Whatfix”

1.15.“SaaS Services” means the cloud-based Software as made available by Whatfix to Customer hereunder in

a hosted, software-as-a-service format, and including all upgrades, updates and patches to the SaaS

Services that Whatfix makes available for general release at no additional charge to its Customers.

1.16.“Support Services” means the technical support services for the SaaS Services available at

application.

2. SAAS SERVICES

2.1 Subject to the Customer paying the Subscription Fees in accordance with this Agreement, during the

Subscription Term, Customer will receive a non-exclusive, non-assignable, non-sublicensable, royalty free,

worldwide right to access and use the SaaS Services solely for its internal business operations subject to the

terms of this Agreement and up to the number of application users documented in the Order Form.

2.2 Whatfix will provide Customer with Support Services with respect to the SaaS Services so long as Customer

has paid all outstanding Subscription Fees at the time such Support Services are required.

2.3 Customer acknowledges that this Agreement is a services agreement and Whatfix will not be delivering

copies of the Software to Customer as part of the SaaS Services. In case of a self-hosted deployment,

Whatfix will provide the Customer the capability to host the Customer Content and the SaaS service on the

Customer’s servers.

2.4 Whatfix shall work with the Customer and provide the onboarding and training assistance for the creation of

Flows and Customer Content for the SaaS services to be availed by the Customer.

make the SaaS Services available to any person other than authorized End User, (iii) use or access the SaaS

Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify

or create derivative works based upon the SaaS Services or Documentation or copy, modify, transmit, distribute,

frame or mirror any of the Software in any form or media or by any means, (v) remove, modify or obscure any

copyright, trademark or other proprietary notices contained in the Software used to provide the SaaS Services or

in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source

code of the Software used to provide the SaaS Services, except and only to the extent such activity is expressly

permitted by applicable law, (vii) license, sell, resell, transfer, rent, lease, distribute, exploit or otherwise make

the SaaS Services or Software available to anyone other than the End Users or (viii) access the SaaS Services or

use the Documentation in order to build a similar product or competitive product. Subject to the limited licenses

5.1 Assistance: Customer shall provide commercially reasonable information and assistance to Whatfix to

enable Whatfix to deliver the SaaS Services. Upon request from Whatfix, Customer shall promptly

deliver Customer Content to Whatfix in an electronic file format specified and accessible by Whatfix and

provide access to training/development environment of the Application, Customer shall make necessary

5.2 Compliance with Laws: Customer shall comply with all applicable laws in connection with its use of the

SaaS Services, including those laws related to data privacy, international communications, and the

transmission of technical or Personal Data. Customer acknowledges that Whatfix exercises no control over

the content of the information transmitted by Customer or the End User through the SaaS Services.

Customer shall not upload, post, reproduce or distribute any information, software or other material

protected by copyright, privacy rights, or any other Intellectual Property Right without first obtaining the

permission of the owner of such rights.

5.3 Platform Access: Customer shall be solely responsible for the acts and omissions of its Platform Users.

Whatfix shall not be liable for any loss of data or functionality caused directly or indirectly by the Platform

Users.

5.4 Customer Content: Customer is solely responsible for collecting, inputting and updating all Customer

Content stored on the Software, and for ensuring that the Customer Content does not (i) include anything

that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other

intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing,

offensive or malicious. Customer shall: (i) notify Whatfix immediately of any unauthorized use of any

password or user id or any other known or suspected breach of security, (ii) report to Whatfix immediately

and use reasonable efforts to stop any unauthorized use of the Service that is known or suspected by

Customer or any End User and (iii) not provide false identity information to gain access to or use the

“look and feel”, and Whatfix’s Confidential Information and Intellectual Property.

5.5 License from Customer: Subject to the terms and conditions of this SaaS Agreement, Customer shall

technology, if any, that may be appropriate or necessary for use with some Whatfix programs is specified

in the program Documentation or ordering document as applicable. Customer’s right to use such third party

technology is governed by the terms of the third party technology license agreement and not under the

Agreement.

5.7 Suggestions: Whatfix shall have a royalty-free, worldwide, irrevocable, perpetual license to use and

incorporate into the SaaS Services any suggestions, enhancement requests, recommendation or other

feedback provided by Customer, including End Users, relating to the operation of the SaaS Services.

6. ORDERS AND PAYMENT

6.1 Orders: Customer shall order SaaS Services pursuant to the Order Form. All services acquired by

Customer shall be governed exclusively by this SaaS Agreement and the applicable Order Form. In the

event of a conflict between the terms of an Order Form and this Agreement, the terms of the Order Form

shall take precedence.

6.2 Invoicing and Payment: Unless otherwise provided in the Order Form, Whatfix shall invoice Customer

for all Fees on the Order Form effective date. Customer shall pay all undisputed invoices within 30 days

Fees are stated in are payable in the currency detailed in the Order Form, and must be paid by Customer to

Whatfix in such currency.

the Customer shall be subject to deduction of taxes, as per applicable laws.

7.1 Term of SaaS Agreement: The term of this SaaS Agreement shall begin on the Effective Date and shall

continue until terminated by either party in accordance with Section 7.2 of this Agreement.

7.2 Termination:. The Subscription Term shall renew for successive Subscription Terms unless either party

delivers written notice of non-renewal to the other party at least 30 days prior to the expiration of the

then-current Subscription Term.

7.3 Suspension for Non-Payment: Whatfix reserves the right to suspend delivery of the SaaS Services if

Customer fails to timely pay any undisputed amounts due to Whatfix under this SaaS Agreement, but only

after Whatfix notifies Customer of such failure and such failure continues for fifteen (15) days. Suspension

of the SaaS Services shall not release Customer of its payment obligations under this SaaS Agreement.

Customer agrees that Whatfix shall not be liable to Customer or to any third party for any liabilities, claims

7.4 Suspension for Ongoing Harm: Whatfix reserves the right to suspend delivery of the SaaS Services if

Whatfix reasonably concludes that Customer or an End User user’s use of the SaaS Services is causing

immediate and ongoing harm to Whatfix or others. In the case that Whatfix must suspend delivery of the

SaaS Services, Whatfix shall immediately notify Customer of the suspension and the parties shall attempt

to resolve the issue. Whatfix shall not be liable to Customer or to any third party for any liabilities, claims

or expenses arising from or relating to any suspension of the SaaS Services in accordance with this Section

7.4. Nothing in this Section 7.4 will limit Whatfix’s rights under Section 7.5 below. This SaaS Agreement

may be terminated (i) by Whatfix if Customer breaches a term of this SaaS Agreement that remains

uncured for 30 days (or, in the case of non-payment, five days) after delivery of notice of such breach, or

(ii) if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to

(a) if the other party commits a material breach of any term of this Agreement, which breach is

irremediable or (if such breach is remediable) fails to remedy that breach within thirty (30) days after

being notified in writing to do so; or

(b) the other party takes any step or action in connection with its entering administration, provisional

liquidation or any composition or arrangement with its creditors (other than in relation to a solvent

restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a

if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the

relevant jurisdiction, or it ceases or threatens to cease to carry on business.

(b) If Whatfix terminates this SaaS Agreement due to a breach by Customer, then Customer shall

immediately pay to Whatfix all amounts then due under this SaaS Agreement and to become due during

the remaining term of this SaaS Agreement, but for such termination. If Customer terminates this SaaS

unearned, pre-paid amounts for any unperformed SaaS Services scheduled to be delivered after the

termination date on a pro rata basis.

(c) Upon termination of this SaaS Agreement and upon subsequent written request by the disclosing party,

the receiving party of tangible Confidential Information shall immediately return such information or

destroy such information and provide written certification of such destruction, provided that the

receiving party may permit its legal counsel to retain one archival copy of such information in the event

of a subsequent dispute between the parties.

The Service Level Agreement (“SLA”) for the SaaS Services is set forth under the Support Terms. The SLA

sets forth Customer’s sole remedies for availability or quality of the SaaS Services including any failure to

AGREEMENT. NEITHER WHATFIX NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS

WARRANT OR GUARANTEE THAT THE OPERATION OF THE SUBSCRIPTION SERVICE WILL

BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL WHATFIX OR ANY OF ITS

SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR

10. LIMITATIONS OF LIABILITY

CONTRIBUTED TO BY ANY EMPLOYEE, AGENT, CONTRACTOR OR REPRESENTATIVE OF

CUSTOMER, LOSS CAUSED AS A RESULT OF THE SERVICES BEING UNAVAILABLE AS A

RESULT OF PLANNED DOWNTIME FOR THE SERVICES AS NOTIFIED TO CUSTOMER, LOSS

ARISING FROM ANY FAILURE OF CUSTOMER’S INFRASTRUCTURE AND/OR UTILITIES,

LOSS CAUSED AS A RESULT OF THE SERVICES BEING UNAVAILABLE CAUSED BY ANY

EVENT OR CIRCUMSTANCE OUTSIDE OF WHATFIX’S CONTROL, LOSS CAUSED BY THE

FAILURE OR DELAY OF ANY THIRD PARTY APPLICATION OR SERVICE OR NETWORK,

INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS SAAS

AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE OR

STATUTORY DUTY), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF

the SaaS Services, modify the SaaS Services in a manner that does not materially impair the functionality, or

terminate this Agreement and repay to Customer any unearned, prepaid amounts paid by Customer with

respect to the Subscription Term following the termination date on a pro rata basis.

infringes any third party Intellectual Property Rights, Customer shall defend Whatfix and its directors,

officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages

and expenses (including reasonable legal fees) finally awarded against such parties or agreed to in a written

claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information

and authority reasonably requested by the other party in the defense and settlement of the claim.

12. CONFIDENTIALITY

indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as

“confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial

disclosure as confidential and is confirmed in writing to the receiving party to be “confidential” or

(perpetually in the case of Software), each party shall treat as confidential all Confidential Information of

the other party, shall not use such Confidential Information except to exercise its rights and perform its

obligations under this SaaS Agreement, and shall not disclose such Confidential Information to any third

party. Without limiting the foregoing, each Party shall use at least the same degree of care, but not less than

a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent

the disclosure of Confidential Information of the other party. Each party shall promptly notify the other

party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential

Information. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or

other tangible objects which embody the other party's Confidential Information and which are provided to

the party hereunder. Each party may disclose Confidential Information of the other party on a

obligations to the disclosing party, or (c) is independently developed by the receiving party without use of

13. PRIVACY, DATA PROTECTION AND SECURITY

Customer understands and acknowledges that, in connection with the use of the SaaS Services by

Customer, Whatfix may process Personal Data only on Customer’s behalf and Whatfix and Customer

hereby agree that Customer shall be deemed to be the data controller and Whatfix shall be deemed to be

Customer’s Undertakings: Customer shall be solely responsible for obtaining all consents and

authorisations as may be required by any applicable law, for the collection, storage and processing of

information and/or sensitive information by Whatfix according to Customer’s instructions, including that

such processing according to Customer’s instructions will not place Whatfix in breach of Data Protection

Security: Whatfix complies with security standards, such as encryption of data in motion over public

networks and auditing standards (such as SOC 2 Type 2 and ISO 27001:2013). Furthermore, Customer’s

information is stored with logical separation from information of other customers. In addition, Whatfix

shall have in place and shall comply with documented written policies and procedures, periodically

reviewed, covering the administrative, physical and technical safeguards in place and relevant to the

access, use, loss, alteration, disclosure, storage, destruction and control of information. Such policies and

procedures will include encryption of data, virus detection and firewall utilization.

14. GENERAL PROVISIONS

14.1 Non-Exclusive Service: Customer acknowledges that SaaS Services are provided on a non-exclusive basis.

Nothing shall be deemed to prevent or restrict Whatfix’s ability to provide the SaaS Services or other

technology, including any features or functionality first developed for Customer, to other parties.

14.2 Assignment: Neither party may assign this SaaS Agreement or any right under this SaaS Agreement,

of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its

duties under this SaaS Agreement, provided, however, that such party shall not be relieved of any

14.6 Severability: If any term of this SaaS Agreement is held to be invalid or unenforceable, that term shall be

reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this

matter of this SaaS Agreement. This SaaS Agreement may be amended solely in a writing signed by both

parties. Standard or printed terms contained in any purchase order or sales confirmation are deemed rejected and

shall be void unless specifically accepted in writing by the party against whom their enforcement is sought;

mere commencement of work or payment against such forms shall not be deemed acceptance of the terms.

14.9 Survival: Sections 4, 7, and 9 through 14 of this SaaS Agreement shall survive the expiration or

termination of this SaaS Agreement for any reason.

14.10 Publicity: Both Parties agree to jointly work towards the publicity and marketing of this

video or written testimonial, to be used as a marketing collateral. The video testimonial shall be

recorded at the Customer's premises, at Whatfix’s cost. The Customer shall have the right to edit and

approve the testimonial prior to its publication.

at www.whatfix.com and for the purpose of marketing the Service.

thereof may be subject to export laws and regulations issued by Bureau of Industry and Security. Each

party represents that it is compliant with the same. The Customer shall not permit Users to access or use

any Service or Content in violation of the aforesaid regulations.

14.12 No Third Party Beneficiaries: A person who is not a party to this Agreement shall not have any rights

under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement .