A Closer Look

Customer Experience and Mystery Shopping

Software-as-a-Service Agreement

Each party agrees as follows:

This Software-as-a-Service Agreement (this “Agreement”) and the applicable Order Forms between the undersigned client (the “Client”) and A Closer Look, LLC’s (“Provider”) will govern Client’s access to and use of Provider’s cloud-based hosted software-as-a-service offering and related services (the “Services”). Provider will provide the Services through the web from its cloud-based hosting environment.

  1. HOSTED SERVICES
    1. Order Forms. This Agreement contemplates that all Services one or more Order Forms for the Services, and each Order Form will describe the Services ordered and associated fees. “Order Forms” means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between and signed by Provider and Client from time to time. Order Forms will be deemed incorporated herein by reference.
    2. Definitions.
      1. “Aggregated Statistics” means data and information related to Client’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
      2. “Authorized User” means Client’s employees, consultants, contractors, and agents (i) who are authorized by Client to access and use the Services under the rights granted to Client pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
      3. “Client Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User through the Services.
      4. “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services provided by Provider to Client either electronically or in hard copy form.
      5. “End User” a Client or a person that uses the Services for or on behalf of such Client.
      6. “Provider IP” means the Services, the Documentation, and all intellectual property provided to Client or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Client’s access to or use of the Services but does not include Client Data.
    3. Provision of Access. Subject to the terms and conditions of this Agreement, Provider hereby grants Client a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Client’s internal use. Provider shall provide to Client the necessary passwords and network links or connections to allow Client to access the Services.
    4. Use Restrictions. Client shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or documentation; or (v) use the Services or documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, including the Telephone Consumer Protection Act.
    5. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Client’s use of the Services and collect and compile Aggregated Statistics. As between Provider and Client, all rights, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Client acknowledges that Provider may compile Aggregated Statistics based on Client Data input into the Services. Client agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
    6. Client Data. Provider acknowledges that, as between Provider and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for Provider to provide the Services to Client, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client Data incorporated within the Aggregated Statistics. Client acknowledges that Provider cannot control or scrub the content of Client Data, including any photographs, sent to the Client from Client’s customer. Provider shall not be held responsible for any content shared in the messages between the Client and any of Client’s customers or employees.
    7. End User Data. Client acknowledges that, as between Provider and Client, Provider owns all right, title, and interest, including all intellectual property rights, in and to the End User data. Provider hereby grants to Client a non-exclusive, royalty-free, worldwide license to use and display the End User data as may be necessary for Client to use the Services as authorized by this Agreement.
    8. Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to Provider on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
    9. Client Responsibilities and Acceptable Use. Client must: (i) keep its access credentials secure and confidential; (ii) use commercially reasonable efforts to prevent unauthorized access to the Services and notify Provider promptly of any such unauthorized access; (iii) use the Services only in accordance with its user guide; and (iv) comply with all applicable laws, including without limitation, the Telephone Consumer Protection Act (“TCPA”) and its requirements applicable to outbound SMS messages. Client acknowledges and agrees (iv) its use of the Services is subject to the Provider’s Privacy Policy at https://a-closer-look.com/privacy-policy, which Provider may periodically update and Client agrees to regularly review the Privacy Policy to stay informed of any updates; and (v) Provider has no responsibility for any data that transmits from an end user through the Services to Client.
    10. Security. Provider will maintain and enforce reasonable technical, administrative, and physical security procedures with respect to its access and maintenance of Client and End User data transmitted through the Services, and to safeguard against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of such or End User data (a “Security Incident”). In the event of a confirmed Security Incident, Provider, will provide Client notice within twenty-four hours. Provider will thereafter promptly provide Client with notice of Provider’s remediation plan.
  2. PAYMENT TERMS.
    1. Fees. Client must pay all fees that are due as set forth in Order Forms.
  3. WARRANTY/SERVICE LEVEL AGREEMENT and REMEDY.
    1. Limited Warranty. Provider warrants to Client that the Services will perform materially in accordance with its documentation, provided that Provider reserves the right to make changes to the Services, however the functionality of the Services as set forth in the Order Form and Documentation will not materially decrease during a paid term.
    2. Limited Remedy and Disclaimer. Client’s exclusive remedy and Provider’s sole obligation for breach of the warranty will be for Provider to correct the deficient Services that caused the breach of warranty, or if Provider cannot substantially correct the breach in a commercially reasonable manner, Client may terminate the applicable Order Form in accordance with Section 7(b) and Provider will refund all fees prepaid to Provider under such Order Form for unused Services. PROVIDER DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WHILE PROVIDER TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICES, PROVIDER DOES NOT GUARANTEE THAT THE SERVICES CANNOT BE COMPROMISED.
  4. MUTUAL CONFIDENTIALITY.
    1. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Provider’s Confidential Information includes the Services, the Documentation, the terms of this Agreement and all Order Forms.
    2. Protection of Confidential Information. The Receiving Party must use the same degree of care to protect the Confidential Information that it uses to protect its confidential information and in no event less than reasonable care, and not disclose or use any Confidential Information of the Disclosing Party for any purpose other than to perform its obligations within the scope of this Agreement. The Receiving Party must limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party with substantially similar confidentiality terms. Any breach by Receiving Party of the Disclosing Party’s Confidential Information could cause irreparable injury or harm to the Disclosing Party. The Disclosing Party may seek a court order to stop any breach or avoid any future breach.
    3. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third-party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use or access to the Confidential Information. The Receiving Party may disclose Confidential Information to the extent required by law or court order but will reasonably endeavor to provide the Disclosing Party with advance notice to seek a protective order.
  5. PROPRIETARY RIGHTS.
    1. Reservation of Rights by Provider. The Services and other technologies and materials developed or provided by Provider under this Agreement are the proprietary property of Provider and its licensors. Provider grants no rights unless expressly provided in this Agreement.
  6. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.
    1. EXCLUSION OF CERTAIN DAMAGES. NEITHER PARTY IS LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, COSTS OF LOST OR DAMAGED MATERIAL) ARISING UNDER OR RELATING TO THIS AGREEMENT AND ALL ORDER FORMS.
  7. LIMITATION OF LIABILITY. BOTH PARTYS AGREE THE MAXIMUM LIABILITY FOR ALL DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT AND ALL ORDER FORMS (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY CLIENT TO PROVIDER UNDER SUCH RELEVANT ORDER FORM DURING THE TWELVE (12) MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES.
  8. TERM, TERMINATION AND SUSPENSION OF SERVICE.
    1. Term. This Agreement continues for the duration of all Order Forms (“Term”). Upon the end date of the Order Term, Client’s rights to access or use the Services shall terminate.
    2. Mutual Termination for Material Breach. In the event of a material breach of this Agreement, the non-breaching party shall provide written notice to the breaching party. The breaching party will have thirty days to cure the breach; if upon thirty days after written notice the breach is uncured, the non-breaching party may termination this Agreement upon written notice to the breaching party. Upon Client’s termination for Provider’s breach as provided in this Section, Provider shall refund any prepaid fees for unused Services covering the remainder of the Term.
    3. Suspension of Service for Violations of Law or Policy. In addition to Provider’s termination rights under Section 7.b, Provider may temporarily suspend access to the Services for Client’s breach of this Agreement. Provider will promptly restore access to the Services after the breach is cured.
  9. INDEMNIFICATION.
    1. Provider, will indemnify, defend, and hold harmless Client from and against any losses incurred by Client resulting from any third-party claims against Client alleging that the Services (excluding the End User data) used in accordance with this Agreement violates a copyright, US patent, or trademark.
    2. Client will indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any losses resulting from any third-party claim that the Client Data, or any use of the Client Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any third-party claims based on Client’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Client may not settle any third-party claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof by counsel of its own choice.
    3. The indemnified party shall:
      1. Promptly notify the indemnifying party of the claim in writing;
      2. Reasonably cooperate with the indemnifying party in the defense; and
      3. Shall allow the indemnifying party to solely control the defense or settlement of the claim.
    4. The indemnifying party will pay the defense costs of the attorneys the indemnifying party hires to defend the indemnified party and will pay the indemnifying party’s negotiated settlement amounts and the court awarded damages.
    5. Remedies. For Provider’s indemnification claim, Provider may modify the Services, procure the necessary rights, or replace it with the functional equivalent. If Provider determines that none of these are reasonably available, then Provider will terminate the Services and provide a refund of any prepaid fees for unused terminated Services.
    6. Exclusions. Provider has no obligation for any claim arising from:
      1. Provider’s compliance with Client’s designs, specification, instructions, or technical information;
      2. Modifications made other than by Provider;
      3. A combination of the Services with other technology where the infringement would not occur but for the combination; or
      4. Technology not provided by Provider.
    7. This section contains Client’s exclusive remedies and Provider sole liability for intellectual property infringement claims.
  10. GOVERNING LAW. This Agreement will be governed by the laws of Delaware (excluding its choice of law rules.) The parties consent to the exercise of exclusive jurisdiction by the state or federal courts in the State of Delaware for any claim relating to this Agreement. Nothing in this Agreement prevents any party from seeking injunctive relief in any court of competent jurisdiction. The prevailing party in any litigation or arbitration is entitled to recover its attorney’s fees and costs from the other party.
  11. MISCELLANEOUS OTHER TERMS. This Agreement, together with all Order Form(s), constitutes the entire Agreement between the parties, and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. No modification or waiver of any term of this Agreement is effective unless both parties sign it. Neither party may assign or transfer this Agreement or an Order Form to a third-party, except that the Agreement with all Order Forms may be assigned as part of a merger, a sale of all or substantially all of the business or assets, a corporate reorganization, of a party or by operation of law. The parties are independent contractors with respect to each other. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. If there is an inconsistency between this Agreement and an Order Form, the Order Form prevails. Any terms that by their nature survive termination or expiration of this Agreement, will survive, including without limitation Sections 3, 4, 5, 6, 7, 8, 9 and 10. With Client’s written approval in advance for each use, Provider may use Client’s name and logo in customer lists and related promotional materials describing Client as a customer of Provider. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.