ONNA TECHNOLOGIES, INC. “PAY AS YOU GO” ORDER FORM


ONNA TECHNOLOGIES, INC. “PAY AS YOU GO” ORDER FORM

Customer: , a and its divisions, subsidiaries and affiliates (collectively, “Customer”)

Address:  

Contact:,  

Services: Subject to this Agreement, Onna Technologies, Inc. (“Onna”) will provide the Onna Platform software as a service (“SaaS”) application (“Platform”) on Onna’s cloud environment (the “Services”). End users of the Platform will have access to the Platform, including any fixes or updates which Onna may provide from time to time at no additional cost to Customer.

Fees: Customer agrees to pay the usage fees set forth in Exhibit B, “Rate Schedule”. In addition, you agree to pay any applicable support fees in connection with your order of any support services pursuant to our Support Terms set forth in Exhibit B.

Payment Schedules: Customer will pay Onna the applicable monthly charges within 15 days from date of invoice.

Terms and Conditions are listed in Exhibit A. Rate Schedule is listed in Exhibit B.

SAAS SERVICES AGREEMENT

This SaaS Services Agreement (“Agreement”) is entered into on this November 19, 2018 (the “Effective Date”) between Onna Technologies, Inc., with a place of business at 222 Broadway, 19th Floor, New York, NY 10038 (“Onna”), and the Customer listed above (“Customer”). This Agreement includes and incorporates the above Order Form, as well as the attached Terms and Conditions and contains, among other things, warranty disclaimers, liability limitations and use limitations.

Exhibit A

TERMS AND CONDITIONS

Exhibit A

TERMS AND CONDITIONS

Onna and Customer are herein collectively referred to as the “parties” and individually as a “party.”

  1. SCOPE
    1. Terms and Conditions shall apply to Customer’s use of Platform as described in the Order Form, to the exclusion of any different terms of any purchase order submitted by Customer, even if signed by Onna and Customer. This Agreement represents the parties’ entire understanding regarding the Platform and shall control over any different or additional terms of any purchase order or other non-Onna ordering document, and no terms included in any such purchase order or other non-Onna ordering document shall apply to the Platform. In the event of a conflict between these Terms and Conditions and an Order Form, the terms of these Terms and Conditions shall control. All capitalized terms not defined herein shall have the meanings attributed in the applicable Order Form. Subject to the terms of this Agreement, Onna hereby grants Customer a non-exclusive, non-sublicensable, non-assignable and non-transferable license to use the Platform during the Term.

     

  2. SAAS SERVICES AND SUPPORT
    1. As part of the registration process, Customer will identify an administrative username and password for Customer’s Platform account. Onna reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
    2. Onna shall respond to requests by email (support@onna.com) during Onna Business Hours, which are defined as the hours between 7 a.m. and 7 p.m. Pacific, Monday – Friday, excluding U.S. national holidays.

     

  3. RESTRICTIONS AND RESPONSIBILITIES
    1. Customer 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 of the Platform or other software, documentation or data related to Platform; modify, translate, or create derivative works based on the Platform (except to the extent expressly permitted by Onna); use the Platform for timesharing or service bureau purposes or otherwise outside of the rights expressly granted to Customer; or otherwise for the benefit of a third party (including by assisting a third party in building or supporting, products or services competitive to Onna); use the Services to deliver any application other than the Customer Application without Onna’s express written consent; or remove any proprietary notices or labels.
    2. Customer represents, covenants, and warrants that Customer will use the Platform only in compliance with all applicable laws and regulations. Without limiting the foregoing, Customer may not remove or export from the United States or allow the export or re-export of the Platform, or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Platform and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
    3. Customer shall not knowingly or willfully use the Platform in any manner that could damage, disable, overburden, impair or otherwise interfere with Onna’s provision of the Platform.
    4. From time to time, Onna may provide updates to the Platform (“Updates”). Customer shall promptly, and in no event later than twenty (20) business days from the availability of any Update, install such Update and cease to use any former versions of the Platform. Failure to do so may result in loss of support and product functionality.
    5. Although Onna has no obligation to monitor Customer’s use of the Platform, Onna may do so, and Onna may immediately suspend Customer’s password, account, and access to the Platform if Customer violates Section 3, 4, 5, or 12 of these Terms and Conditions. Any suspension by Onna of the Platform under the preceding sentence shall not relieve Customer of its payment obligations under this Agreement.
    6. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
    7. If Onna believes or becomes aware of an actual or potential security breach affecting Customer’s assets or information, Onna shall immediately notify Customer.

     

  4. CONFIDENTIALITY; PROPRIETARY RIGHTS
    1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Onna includes non-public information regarding features, functionality, pricing, and performance of the Platform. Proprietary Information of Customer includes non-public data provided by or on behalf of Customer to Onna to enable the provision of the Platform (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Platform or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Receiving Party’s obligations hereunder will last for five years following disclosure by the Disclosing Party. Notwithstanding the foregoing, the Receiving Party will have no obligations with respect to Proprietary Information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
    2. Customer shall own all right, title and interest in and to the Customer Data. Onna shall own and retain all right, title and interest in and to (a) the Platform, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Platform or support, and (c) all intellectual property rights related to any of the foregoing listed in (a) – (c). “Intellectual Property Rights” means any and all right, title and interest in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of privacy, publicity and similar rights of any type, including any applications, continuations or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory or judicial authority. Any design, development or product used by Customer hereunder shall not be deemed to be a work for hire, and nothing in this Agreement shall be construed to grant to Customer any right or license in any patent, copyright, trade secret, or other intellectual property or rights relating to the Platform.
    3. Notwithstanding anything to the contrary, Onna shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Platform and related systems and technologies (including, without limitation, information concerning Customer Data, whether relating to Customer, and any data derived therefrom), and Onna will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Platform and for other development, diagnostic and corrective purposes in connection with the Platform and other Onna offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein. 

     

  5. PAYMENT OF FEES
    1. Customer will pay Onna the then applicable fees described in the Rate Schedule for the Platform in accordance with the terms therein (the “Fees”). Onna 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 Customer (which may be sent by email). If Customer believes that Onna has billed Customer incorrectly, Customer must contact Onna 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. Inquiries should be directed to Onna’s customer support department. All pricing terms are confidential, and Customer agrees not to disclose them to any third party.
    2. Customer will pay Onna the entirety of the applicable fees and charges upon 15 days from receipt of invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Platform. All payments tendered under this agreement shall be tendered in U.S. dollars. Customer shall be responsible for all taxes associated with Platform other than U.S. taxes based on Onna’s net income.

     

  6. TERM AND TERMINATION
    1. If either party materially breaches any of the terms or conditions of this Agreement, the non-breaching party must provide written notice thereof. If the breaching party does not cure the breach within ten (10) days after written notice, the non-breaching party may terminate this Agreement upon thirty (30) days’ notice.
    2. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, intellectual property rights, proprietary rights, dispute resolution/arbitration, limitations of liability, and provisions mentioned in the Miscellaneous Section.
    3. Upon any termination, Onna will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, after which Onna shall permanently and irrevocably destroy all Customer Data in its possession or control.
    4. Upon termination of this Agreement, Customer shall promptly cease to use the Platform, return all copies of the Platform in its possession, and delete any installation on the Platform on servers or machines under Customer’s control.
    5. Force Majeure. Neither party will be liable for any delay or failure to perform its obligation under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.

     

  7. WARRANTY AND DISCLAIMER
    1. Each party represents and warrants to the other party that: (a) it is duly organized and validly existing under the laws of the state of its incorporation and has full corporate power and authority, and is duly authorized, to enter into the Agreement and to carry out the provisions thereof; (b) the person executing the Agreement on such party’s behalf is authorized to do so; (c) the execution, delivery and performance of the Agreement does not violate any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it; and (d) will comply with ­­­­all applicable federal, state and local laws, rules and regulations in fulfilling its obligations hereunder, including, without limitation, privacy and data security statutes and regulations promulgated and in effect under such statutes and all applicable privacy and data security standards and generally accepted industry standards. Furthermore, Onna represents and warrants to Customer that it shall use reasonable efforts consistent with prevailing industry standards to maintain the Platform in a manner which minimizes errors and interruptions in the operation of the Platform. The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Onna or by third-party providers, or because of other causes beyond Onna’s reasonable control, but Onna shall use commercially reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, ONNA DOES NOT WARRANT THAT THE PLATFORM OR ANY OTHER SERVICES OR PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PLATFORM (INCLUDING ANY SUPPORT AND MAINTENANCE SERVICES) ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

     

  8. INDEMNITY
    1. Onna shall hold Customer harmless from liability to third parties resulting from infringement by the Platform of any United States patent, or any copyright, provided Onna is promptly notified of any and all threats, claims and proceedings related thereto, Customer provides reasonable assistance to Onna in defending any such claims, and Customer provides Onna with sole control over defense and settlement. Onna will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Platform (i) not supplied by Onna, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery without Onna’s authorization, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (vi) where Customer failed to upgrade the Platform as specified by Onna, and such upgrade would have avoided the alleged infringement, or (vii) where Customer’s use of the Platform is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Platform is held by a court of competent jurisdiction to be or are believed by Onna to be infringing, Onna may, at its option and expense and as Customer’s sole remedy (a) replace or modify the Platform to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Platform, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Platform. Customer shall indemnify, defend and hold harmless Onna and its officers, employees, contractors, agents, and advisors against any and all claims, damages, liabilities, charges or expenses raised against or incurred by Onna as a result of a third-party claim arising out of: (a) Customer’s breach of any representation or warranty under this Agreement; or (b) Customer’s breach of this Agreement.

     

  9. LIMITATION OF LIABILITY
    1. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, ONNA 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 OR GOODWILL; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ONNA’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE PLATFORM UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

     

  10. DISPUTE RESOLUTION; ARBITRATION
    1. Any dispute that arises under this Agreement or relating to the Services shall be resolved first through negotiation in good faith between the Parties.  Failing an agreement, the dispute shall be settled by binding arbitration by a single arbitrator selected from the roster of American Arbitration Association (“AAA”) arbitrators, with the arbitration conducted according to the AAA Commercial Arbitration Rules then in force, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof, with the prevailing party entitled to recover costs and attorneys’ fees. The seat of the arbitration shall be New York, NY.  All aspects of the arbitration shall be treated as confidential.

     

  11. MISCELLANEOUS
    1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Onna’s prior written consent; provided that Onna may assign this Agreement in connection with a merger, reorganization, or sale of all or substantially all of Onna’s assets. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. Neither party shall be responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by reason of acts of God, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, or any other circumstances beyond the reasonable control and not involving any fault or negligence of the Delayed Party. This agreement, as well as any amendment hereto or Order Form, may be signed in counterparts, each of which shall be deemed an original, but each of which together shall constitute one and the same instrument. The parties hereby consent to the use of electronic signatures, if applicable, and further agree that an electronic signature or a signature transmitted via facsimile or scanned email shall be considered binding and deemed the same as an original written signature for all purposes hereunder. The headings used in this Agreement are for convenience only and shall not be considered in construing or interpreting this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Onna in any respect whatsoever. The waiver by either party of a breach of or a default under any provision of this Agreement shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any such right or remedy. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws/provisions.

     

  12. NOTICE
    1. Any notice, request, demand or other communication required or permitted hereunder shall be made in writing or via email, shall reference this agreement and shall be deemed to be properly given: (a) when delivered personally; (b) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) one (1) business day after deposit with an express courier, with written confirmation of receipt, or, in the case of email (d) upon receipt of email.  All notices shall be sent or emailed to the addresses below as follows (or to such other address or person as may be designated by a party by giving written notice to the other party pursuant to this Section).

To:

Attn:

 

To: Onna Technologies, Inc.

Attn: Salim Elkhou

222 Broadway

19th Floor 

New York, NY 10038

salim@onna.com

EXHIBIT B

Rate Schedule

Service

Fees

Data Collection and Processing

$0.035 per record

Data Hosting

$15 per GB per month

Project setup fee

$500

Onna Internal Users

$50 per user per month

Data Exports

$100 per GB per export

Tech Support

$150 per hour

Definitions

“Record” or “Document” refers to each individual file collected and processed on Onna. For Slack chats, one record is counted as a 24 hour chat conversation in one channel. Attachments are counted separately.

“Data Hosting” refers to the amount of data that may be stored by Onna.

“Project Setup Fee” refers to the workspace and user creation and also includes a complimentary 1 hour onboarding session. This is a one-time fee charged for each individual workspace created.

“Onna Internal Users” refers to number of users in each Onna environment, including Members and Admins.

“Data exports” refer to the amount of data exported from Onna. Each export is charged per GB and rounded to nearest whole number.

“Tech support” means expert consultation during Onna Business Hours.

 

Onna Technologies, Inc.

By: 

Name: Salim Elkhou

Title: CEO

       

By: 

Name:               

Title:              

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Signature Certificate
Document name: ONNA TECHNOLOGIES, INC. “PAY AS YOU GO” ORDER FORM
Unique Document ID: ceb75a9ca96eedf0c8b3e78768aa3b255a8cdcb4
Timestamp Audit
September 17, 2018 11:42 am ESTONNA TECHNOLOGIES, INC. “PAY AS YOU GO” ORDER FORM Uploaded by Salim Elkhou - mayda@onna.com IP 107.15.227.109
September 17, 2018 11:43 am EST Document owner jonathan@onna.com has handed over this document to mayda@onna.com 2018-09-17 11:43:47 - 107.15.227.109