Software as a Service Agreement

This VA Software as a Services Agreement (this “Agreement”) is between Visa Architect (“VA”) and you (“Customer”). This Agreement sets forth the terms and conditions that govern orders placed under this Agreement and includes and incorporates the Order Form(s) entered into between VA and Customer. VA and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

WHEREAS, VA provides access to the Services to its customers; and

WHEREAS, Customer desires to access the Services, and VA desires to provide Customer access to the Services, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

• Definitions.
• “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by VA in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
• “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
• “Customer 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 Customer or an Authorized User through the Services.
• “Documentation” means VA’s user manuals, handbooks, surveys, questionnaires, and guides relating to the Services provided by VA to Customer either electronically or in hard copy form or end user documentation relating to the Services.
• “VA IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, VA IP includes Aggregated Statistics and any information, data, or other content derived from VA’s monitoring of Customer’s access to or use of the Services but does not include Customer Data.
• “Services” means the software-as-a-service offering described in the Order Form (s).
• Access and Use.
• Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with the terms and conditions of this Agreement, VA hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable 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 Customer’s internal use. VA shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. Either Party may request a permitted change to the Services by completing a Change Order Form Request mutually agreed in writing. The receiving party will review the proposed Change Order Form Request and will (i) approve it, (ii) agree to further investigation, or (iii) reject it.  Changes agreed upon will not be effective until mutually executed in an amended or updated Order Form by both Parties. For the avoidance of doubt, the Services shall not include third-parties who are independently engaged by Customer to provide related services. VA has no liability arising from Customer’s use of such third-party products and services.
• Documentation License. Subject to the terms and conditions contained in this Agreement, VA hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable, revocable license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
• Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer 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, resell, 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.
• Reservation of Rights. VA reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the VA IP.
• Suspension. Notwithstanding anything to the contrary in this Agreement, VA may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) VA reasonably determines that (A) there is a threat or attack on any of the VA IP; (B) Customer’s or any Authorized User’s use of VA IP disrupts or poses a security risk to VA IP or to any other customer or vendor of VA; (C) Customer, or any Authorized User, is using the VA IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) VA’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of VA has suspended or terminated VA’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 4(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). VA shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. VA shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. VA will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
• Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, VA may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between VA and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by VA. Customer acknowledges that VA may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that VA 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.
• Customer Responsibilities.
• General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.
• Fees and Payment.
• Fees. Customer shall pay VA the fees (“Fees”) as set forth in the Order Form(s), if applicable, attached hereto without offset or deduction. Customer shall make all payments hereunder in US dollars/Indian rupees on or before the date set forth in the Order Form, if applicable. If Customer fails to make any payment when due, without limiting VA’s other rights and remedies: (i) VA may charge interest on the past due amount at the highest rate permitted under applicable law; (ii) Customer shall reimburse VA for all costs incurred by VA in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 5 days or more, VA may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full. All Fees are nonrefundable.
• Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on VA’s income.
• Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as "confidential" (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
• Intellectual Property Ownership; Feedback.
• VA IP. Customer acknowledges that, as between Customer and VA, VA owns all right, title, and interest, including all intellectual property rights, in and to VA IP.
• Customer Data. VA acknowledges that, as between VA and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to VA a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for VA to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, commercialize and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
• Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to VA by mail, email, telephone, or otherwise, suggesting or recommending changes to v IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), VA is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to VA on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and VA 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 VA is not required to use any Feedback.
• Disclaimer. THE VA IP AND SERVICES IARE PROVIDED “AS IS” AND VA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. VA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  VA MAKES NO WARRANTY OF ANY KIND THAT VA IP, SERVICES OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
• Indemnification.
• Customer Indemnification. Customer shall indemnify, hold harmless, and, at VA d’s option, VA from and against any Losses resulting from any third party claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any third party claim based on Customer’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 VA or authorized by VA in writing; or (iv) modifications to the Services not made by VA, provided that Customer may not settle any third party claim against VA unless VA consents to such settlement, and further provided that VA 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.
• Sole Remedy. THIS 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND VA’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL VA’S LIABILITY UNDER THIS SECTION 8 EXCEED THE FEES PAID TO VA BY CUSTOMER HEREUNDER.
• Limitations of Liability. IN NO EVENT WILL VA BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER VA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL VA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE FEES PAID TO VA BY CUSTOMER HEREUNDER.
• Term and Termination.
• Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until the period specified on the Order Form (the “Term”).
• Termination. In addition to any other express termination right set forth in this Agreement, VA may terminate this Agreement at any time, including, but not limited to, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than 5 days after VA’s delivery of written notice thereof; or (B) breaches any of its obligations under this Agreement.
• Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the VA IP and, without limiting Customer’s obligations under 5, Customer shall delete, destroy, or return all copies of VA IP and certify in writing to VA that VA IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
• Survival. This Section 10(d) and 1, 4, 5, 6, 7, 8, 9, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
• Miscellaneous.
• Location. Services may be performed outside the country in which Customer and/or VA is located.  From time to time, VA may change the location where Services are performed and/or the party performing the Services; provided however, VA shall remain responsible to Customer for the delivery of Services.
• Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, and any other documents incorporated herein by reference, the following order of precedence governs: (i) this Agreement, (ii) VA’s Terms of Service available at https://www.visaarchitect.inc/terms, (iii) VA’s Privacy Policy available at https://www.visaarchitect.inc/privacy, (iv) VA’s Data Processing Addendum available at https://www.visaarchitect.inc/dataprocessing and (v) the Order Form(s).
• Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
• Force Majeure. In no event shall VA be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond VA’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
• Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
• Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
• Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Tamil  Nadu without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the courts of India or the courts of the Tamil Nadu in each case located in Chennai, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
• Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of VA. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
• Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside India.
• Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under this Agreement would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
• Counterparts. 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.