SaaS Agreement

SOFTWARE AS A SERVICE AGREEMENT

This SOFTWARE AS A SERVICE AGREEMENT (this "Agreement"), effective as of the Date of Last Signature (the "Effective Date"), is by and between PRODUCTPLAN, LLC, a Delaware limited liability company ("Provider"), and [_Insert Customer Legal Name_] ("Customer"). Provider and Customer may be referred to herein collectively as the "Parties" or individually as a "Party." 

This SOFTWARE AS A SERVICE AGREEMENT, effective as of the Effective Date identified on the Order Form (the "Effective Date"), is by and between PRODUCTPLAN, LLC, a Delaware limited liability company ("Provider"), and the Customer identified on the Order Form ("Customer"). By executing an Order Form, clicking "I Agree," or accessing the Services, Customer agrees to be bound by this Agreement. Provider and Customer may be referred to herein collectively as the "Parties" or individually as a "Party."

RECITALS

1. Provider provides access to the Services to its customers.
2. Customer desires to access the Services, and Provider desires to provide Customer access to the Services, subject to the terms and conditions of this Agreement.

AGREEMENTS

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:

1. Definitions. 
   
   1. "Aggregated Statistics" means data and information related to Customer'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 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. 
   3. "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. 
   4. "Documentation" means Provider's user manuals, handbooks, and guides relating to the Services provided by Provider to Customer either electronically or in hard copy form and end user documentation relating to the Services available at Provider's website.
   5. "Order Form" means (i) the online order, checkout, or subscription page through which Customer subscribes to the Services, or (ii) a written order form executed by the parties, in substantially the form of Exhibit A.
   6. "Provider IP" means the Services, the Documentation, and any and all intellectual property made available to Customer 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 Customer's access to or use of the Services, but does not include Customer Data.
   7. "Services" means Provider's software-as-a-service offering consisting of an online collaboration tool that allows users to create and share product strategy initiatives, roadmaps, and related functionality, including customer feedback collection and survey tools, currently known as "ProductPlan", in the number of licenses provided in the Order Form.
2. Order Form, Access and Use. 
   
   1. Order Form. Concurrently with the execution and delivery of this Agreement, the Parties shall complete, execute and deliver an Order Form, specifying the number of licenses for the Services being ordered hereunder, the Fees, and the Term. The terms and conditions of the Order Form are hereby incorporated by reference. 
   2. Provision of Access. Subject to and conditioned on Customer's payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(j)) 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. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
   3. Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 12(j)) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.
   4. 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, 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; (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; or (vi) use the Services for the purpose of competing with Provider's business or gathering information for a competitor or potential competitor of Provider's business. 
   5. Customer Obligations Regarding Licenses and Credentials.  Subject to the terms and conditions of this Agreement, Provider shall grant to Customer and its Authorized Users editor and viewer licenses to utilize the Services. Customer hereby agrees not to, nor permit any of its Authorized Users to, share, distribute, or otherwise make available any licenses or credentials provided under this Agreement and any Order Form. Further, Customer commits to purchasing a separate editor license for each Authorized User who holds editor permissions to utilize the Services, ensuring that each such Authorized User possesses a unique and dedicated license for their use of the Services. Customer shall receive (i) an unlimited number of viewer licenses if such Customer is under a Company Enterprise Plan and (ii) up to twenty (20) viewer licenses included in the Services if such Customer is under each of the Company's Basic and Pro Plans and Customer shall only be required to purchase additional viewer licenses if the Authorized Users possessing a viewer license exceeds twenty (20) such viewer licenses. 
   6. Reservation of Rights. Provider 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 Provider IP.
   7. Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer's or any Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider 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) Provider's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider'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) (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). Provider 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. Provider 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. Provider 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. 
   8. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer's use of the Services and collect and compile Aggregated Statistics (which for the avoidance of doubt shall be anonymized). As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services. Customer 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, provided, that such Aggregated Statistics do not identify Customer or Customer's Confidential Information. 
   9. Access to Information. Provider reserves the right to access, read, preserve, and disclose any information provided in connection with the Services to the extent reasonably necessary or desirable to (i) satisfy any applicable law, regulation, legal process or governmental request, or (ii) address and respond to Customer's support requests. Further, Provider's directors, officers, employees, employees of affiliates, agents and representatives (collectively, "Representatives") may have access to Customer Data and Customer's Confidential Information to the extent that it is reasonably necessary or advisable that such Representatives have access to such information and who are informed of the confidential nature of the information.
   10. Use of Artificial Intelligence.  Provider may utilize artificial intelligence ("AI") technologies, including machine learning and automated decision-making systems, to enhance, optimize, and deliver the Services. The use of AI may include, but is not limited to, writing code, improving service efficiency, analyzing data, providing recommendations, and automating certain processes. Provider will ensure that any AI technologies used materially comply with applicable laws and regulations, respect user privacy, and maintain the security of Customer Data, all in accordance with the terms and conditions of this Agreement. Provider will not use Customer Data to train, improve, or develop AI or machine learning models without Customer's prior written consent. Provider may use third-party AI service providers, including OpenAI, Anthropic, and Google, as subprocessors to deliver AI functionality. Customer acknowledges that AI-generated outputs may contain errors or inaccuracies, and Customer is solely responsible for reviewing, validating, and determining the suitability of any AI-generated content before use. Provider makes no warranty regarding the accuracy, completeness, or fitness for a particular purpose of any AI-generated output.
   11. Third-Party Services. The Services may integrate with or allow Customer to connect to third-party platforms, applications, or services, including but not limited to LinkedIn, Jira, Salesforce, and similar tools ("Third-Party Services"). Customer is solely responsible for compliance with all terms of service, acceptable use policies, and applicable laws governing Customer's use of Third-Party Services in connection with the Services. Provider makes no representations or warranties regarding Third-Party Services and shall not be liable for any acts, omissions, outages, or changes by third-party providers that affect the Services or Customer's use thereof.
   12. AI Compliance. Customer acknowledges that the Services incorporate artificial intelligence systems that may be subject to emerging AI regulations, including the EU Artificial Intelligence Act and U.S. state AI laws. Provider will maintain transparency documentation regarding AI features as required by applicable law. Customer is solely responsible for: (i) determining whether Customer's use of AI features constitutes "high-risk" use under applicable AI laws, including use in employment, credit, housing, insurance, or similar consequential decisions; (ii) implementing any required human oversight prior to acting on AI-generated outputs; and (iii) providing any required disclosures to end users or research participants regarding AI use. Provider does not represent that AI features are suitable for use in high-risk or regulated decision-making contexts.
3. Customer Responsibilities. 
   
   1. 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.
   2. Research Participant Terms. To the extent Customer uses the Services to engage research participants, survey respondents, or other third parties ("Participants"), Customer shall ensure that all Participants agree to ProductPlan's Research Participant Terms of Use available at [URL] prior to participation. Customer may use its own participant consent forms or terms in addition to (but not in lieu of) the Research Participant Terms.
4. Fees and Payment. 
   
   1. Fees. Customer shall pay Provider the fees ("Fees") set forth in the Order Form. Customer agrees that Provider may exercise the right to increase the fees by up to 3% of the then-current Fees before the commencement of each Renewal Term (as defined below). Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. If Customer fails to make any payment when due, without limiting Provider's other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Provider 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. 
   2. Minimum Licenses. Unless Customer terminates this Agreement in accordance with Section 11(b), Customer hereby agrees that Customer will not, prior to any Renewal Term, decrease the total number of licenses ordered from Provider for the then current Term, as specified in the then current Order Form, by more than 20%.
   3. 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 Provider's income.
   4. No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
5. Confidential Information; Data Privacy; Security
   
   1. Confidentiality. 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, and 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 or contractors 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; provided, however, that Provider shall retain all Customer Data, including any Confidential Information incorporated therein, for a period of up to ninety (90) days, and, upon the expiration of this retention period, Provider will delete or destroy such data, except as required by applicable law or regulation. Upon Customer request, Provider will certify in writing that such deletion or destruction has been completed. 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, that 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. Notwithstanding the foregoing, (i) the Receiving Party may retain one copy of the Confidential Information in its legal department to monitor compliance herewith, (ii) the Receiving Party's third party advisors may retain Confidential Information to the extent required by applicable law or professional standards of conduct and (iii) the Receiving Party and its representatives shall not be required to expunge any Confidential Information stored electronically on back-up servers that are routinely over-written.
   2. Data Protection. The Parties hereby undertake to comply at all times during the term of this Agreement with their respective obligations pursuant to data privacy Laws. Without prejudice to the generality of the foregoing, in providing the Services, Provider shall at all times comply with its Privacy Policy and, where applicable, the Data Processing Addendum and Standard Contractual Clauses, available at [URL], which are incorporated herein. 
   3. Security Measures. Provider shall monitor the Services for the purposes of preventing (and, where relevant detecting) any Security Incident. If Provider has reason to suspect or has confirmed the existence of a Security Incident that impacts Customer Personal Data, it shall: (a) notify Customer of such Security Incident without undue delay, but in any event within seventy-two (72) hours, and provide Customer with all such information as may be required for Customer to meet its obligations under applicable law; and (b) at its cost, take all necessary steps to bring the Security Incident to an end and prevent the reoccurrence of such Security Incident. Provider will provide Customer with Provider’s latest SOC2 accreditation and supporting documentation upon Customer’s reasonable request from time to time. For the avoidance of doubt, Provider does not provide or otherwise offer ‘in-person’ audits under any circumstances but will provide annual test reports and other appropriate documentation, certifications, and attestations. Further details may be found on the ProductPlan Website, here: [Trust center link]
6. Intellectual Property Ownership; Feedback. 
   
   1. Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.
   2. Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, 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 Provider to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
   3. Feedback. If Customer 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. 
   4. AI-Generated Outputs. As between Provider and Customer, Customer retains ownership of outputs generated by AI features from Customer Data. Customer is solely responsible for reviewing, validating, and determining the suitability of any AI-generated output before use or distribution.
7. Warranty Disclaimer.  THE PROVIDER IP IS PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER 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. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, 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. 
8. Representations and Warranties. Each Party represents and warrants to the other Party that:
   
   1. it is duly organized, validly existing, and in good standing as a corporation, limited liability company, or other entity under the laws of the jurisdiction of its incorporation or other organization;
   2. it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
   3. the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and
   4. when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
9. Indemnification.
   
   1. Provider Indemnification. 
      
      1. Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights, provided, that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim. 
      2. If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. 
      3. This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; or (C) Customer Data. 
   2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider 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 Claims 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 Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided, that Customer 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. Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'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. 
10. Limitations of Liability. IN NO EVENT WILL EITHER PARTY 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 PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL EITHER PARTY'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 TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO: (I) EITHER PARTY'S INDEMNIFICATION OBLIGATIONS; (II) EITHER PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (III) EITHER PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (IV) CUSTOMER'S PAYMENT OBLIGATIONS. 
11. Term and Termination. 
    
    1. 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 for the Initial Term identified in the Order Form (the "Initial Term"). This Agreement will automatically renew for successive terms of equal length to the Initial Term unless earlier terminated pursuant to the express provisions of this Agreement or either Party gives the other Party written notice of non-renewal at least 30 days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term") (i.e., if the Initial Term is two (2) years, each successive Renewal Term shall be two (2) years; if the Initial Term is one (1) year, each successive Renewal Term shall be one (1) year, etc.). Customer acknowledges that this Agreement will automatically renew unless cancelled. Customer may cancel auto-renewal at any time through Customer's account settings or by providing written notice at least thirty (30) days prior to the end of the then-current term. Upon renewal, Provider will charge the then-current Fees to Customer's designated payment method.
    2. Termination. In addition to any other express termination right set forth in this Agreement:
       
       1. Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Provider's delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(d) or Section 5;
       2. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured sixty (60) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
       3. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer's obligations under Section 5, Customer shall delete, destroy, or return all copies of the Provider IP and, if requested by Provider, certify in writing to the Provider that the Provider IP has been deleted or destroyed. Upon Customer's written request made within thirty (30) days following expiration or termination, Provider will make Customer Data available for export in a standard, machine-readable format. Customer is responsible for downloading or retrieving such data within the export period. Following expiration of the export period, Provider will delete Customer Data in accordance with Section 5. 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.
    4. Survival. This Section 11(d) and Sections 1, 4, 5, 6, 7, 8, 9, 10 and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
12. Miscellaneous. 
    
    1. Entire Agreement. This Agreement, together with the Order Form and all Exhibits and Appendices, 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 the Order Form, Exhibits or Appendices, the following order of precedence governs: (i) first, the Order Form, Exhibits and Appendices to this Agreement, and (ii) second, the body of this Agreement.
    2. Notices. All notices permitted or required by this Agreement shall be in writing, and shall be deemed to have been delivered and received (i) when personally delivered, (ii) on the third business day after the date on which deposited in the United States mail, postage prepaid, certified or registered mail, return receipt requested, (iii) on the date on which transmitted by email or other electronic means producing a tangible receipt evidencing a successful transmission, or (iv) on the next business day after the date on which deposited with a nationally recognized private courier (e.g., FedEx, DHL, UPS, etc.) for overnight delivery, addressed to the Party for whom intended at the mailing address or email address set forth on the signature page of this Agreement for such Party, or such other mailing address or email address, notice of which has been delivered in a manner permitted by this Section.
    3. Force Majeure. In no event shall Provider 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 Provider's reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemic, epidemic, 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.
    4. Use of Name and Logo. Provider shall not use Customer’s name or logo in any public manner, including but not limited to websites, marketing materials, press releases, or case studies, without the prior written consent of Customer. This provision shall survive the termination or expiration of this Agreement.
    5. 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.
    6. 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.
    7. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware 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 Delaware. Subject to Section 12(h), below, 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 the State of Colorado or the United States federal courts located in or serving the City of Denver, County of Denver, Colorado, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    8. Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Denver, Colorado before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
    9. Dispute Procedure. Prior to initiating any arbitration, lawsuit, or other formal legal related to this Agreement, a Party shall first notify the other Party of the relevant issue in writing, including a reasonable description of the issue. The Parties shall attempt in good faith to resolve the issue for a period of 30 days following the delivery of such notice. If the Parties are unable to resolve the issue within that 30-day period, either Party may proceed with a legal action with respect to the issue, subject to the terms of this Agreement. 
    10. 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 Provider; provided, however, that either party may assign this Agreement without consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment or delegation in violation of this Section will be null and void. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. 
    11. Export Regulation. The Services and related technical data may be subject to U.S. export control laws, including the Export Administration Regulations and International Traffic in Arms Regulations, as well as economic sanctions administered by the Office of Foreign Assets Control. Customer represents and warrants that: (i) Customer is not located in, and will not access the Services from, any country subject to comprehensive U.S. sanctions (currently, the Crimea, Donetsk, Kherson, Zaporizhzhia and Luhansk regions of Ukraine, Cuba, Iran, North Korea and Syria, each a “Sanctioned Country” (ii) Customer is not, and is not acting on behalf of, any person or entity on the Specially Designated Nationals List, Entity List, or other restricted party lists; and (iii) Customer will not use the Services for any purpose prohibited by U.S. export control or sanctions laws. Customer shall comply with all applicable export control and sanctions laws in connection with Customer's use of the Services. 
    12. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2(d), 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. 
    13. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other party in any manner whatsoever.
    14. Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of or related to this Agreement, the prevailing Party is entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing Party.

Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument, binding on each signatory thereto. A copy of this Agreement that is executed by a Party (including by use of electronic signature software (e.g., DocuSign, etc.)) and transmitted by that Party to the other Party by facsimile, as an attachment (e.g., in PDF format) to an email or by use of electronic signature software shall be binding upon the signatory to the same extent as a copy hereof containing that Party's original signature.

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IN WITNESS WHEREOF, the Parties hereto have executed this Software as a Service Agreement to be effective as of the Effective Date.

PROVIDER: 

PRODUCTPLAN, LLC, a Delaware limited liability company

By:

Name:

Title:

Address and Email for Notices:

ProductPlan, LLC

Attn: Chief Executive Officer

555 17th Street

15^th Floor

Denver Colorado 80202

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Email:

CUSTOMER:

[Customer Legal Name]

By:

Name:

Title:

Address and Email for Notices:

Email:

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