eMoods Insights Software-as-a-Service Agreement

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Last updated: November 25, 2019

This Software-as-a-Service Agreement (“Agreement”) governs all uses of the eMoods Insights Software-as-a-Service product (the “Service”) developed by Yottaram LLC, a Maine limited liability company (“Yottaram”) and made available to the Customer agreeing to this Agreement (“Customer”). By using the Service or any part of it, including by registering for the Service, Customer agrees to this Agreement effective on the date that Customer first uses the Service or registers for it (“Effective Date”). Customer’s continued use of the Service after the Effective Date means that Customer consents to any updates that Yottaram may make to this Agreement, which Yottaram may do by updating this online document and without separate notice to Customer.

1. Definitions.

Customer” means the person agreeing to this Agreement.

Customer Data” means electronic data and information submitted by or for Customer to the Service.

Customer Systems” means any and all hardware, software or other systems that Customer owns, leases or controls.

Intellectual Property” means copyrights, patents, trademarks, trade secrets, and trade dress.

Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

Service” has the meaning given in section 2.

Third-Party Service” means unmodified software or services provided by third parties and which is either (a) provided by Yottaram to Customer in connection with the Service or (b) required by Yottaram to be obtained by Customer in order for Customer to use Yottaram products.

Yottaram Content” means information created by Yottaram and made available to Customer through the Service, including licensed software developed by Yottaram and information that Yottaram will communicate to Customer during the Term through that software, by email and by other means of communication.

2. The Service.

The Service is a Software-as-a-Service application accessed by Customer on the Internet at https://insights.emoodtracker.com. The Service consists of proprietary software developed by Yottaram as well as Third-Party Services incorporated into it, and Customer may need to create accounts with some of those Third-Party Services to make full use of the Service. The Service will be hosted on a server under the control or direction of Yottaram.

Customer may use either the free version of the Service or either of the two premium, paid versions of the Service. Customer selects the desired version at the time of signup and may change it later.

3. Access and Use.

3.1. Access. Subject to and conditioned on Customer's payment of the Fees and compliance with this Agreement, Yottaram hereby grants Customer a non-exclusive, non-transferable right to access and use the Service during the Term. Yottaram will provide to Customer the necessary passwords and network links or connections to allow Customer to access the Service.

3.2. Use Restrictions. Customer will not at any time during or after the Term, directly or indirectly: (a) sell, resell, license, sublicense, distribute, rent or lease any part of the Service or any Yottaram Content, or disclose any of them to any third parties without compensation; (b) use the Service to store, use or transmit material in violation of third-party privacy or Intellectual Property rights; (c) use the Service to store or transmit Malicious Code, or disable, impair or conduct penetration tests or scans of any hardware, software or other systems that Yottaram owns, leases or controls; (d) interfere with or disrupt the Service’s integrity or performance; (e) gain unauthorized access to the Service; (f) access or use any Yottaram Intellectual Property except as this Agreement allows; (g) modify, copy, or create derivative works based on the Service or Yottaram Content or any part of either of them; (h) frame or mirror any part of the Service or any Yottaram Content; (i) use the Service in a way not expressly authorized by this Agreement; or (j) disassemble, reverse engineer, or decompile any part of the Service or any Yottaram Content, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Service is within the scope of any patent.

Any use of the Service in breach of this Agreement by Customer that in Yottaram’s sole judgment threatens the security, availability or functioning of the Service may result in Yottaram’s immediate suspension of the Service (in which case, however, Yottaram will use commercially reasonable efforts to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension).

3.3. Suspension. Yottaram may temporarily suspend Customer's and any User's access to any part or all of the Service: (i) if Yottaram reasonably determines that (A) there is a threat or attack on the Service; (B) Customer’s use of the Service disrupts or poses a security risk to the Service or to any other customer or vendor of Yottaram; (C) Customer uses the Service for fraudulent or illegal activities; or (D) Yottaram’s provision of the Service to Customer is prohibited by applicable law; (ii) if any vendor of Yottaram has suspended or terminated Yottaram's access to or use of any Third-Party Services; (iii) on receipt of a court order or law enforcement request directing such suspension (any such suspension described in subclause (i), (ii) or (iii), a “Service Suspension”). Yottaram will use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Service following any Service Suspension. Yottaram shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Yottaram will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.

3.4. Modification and Discontinuance. Yottaram may modify the Service and/or Yottaram Content at any time during the Term, with or without prior notice to Customer, and Yottaram will not be liable to Customer or to any third party for any such modification. It may be necessary for Yottaram to perform repairs or maintenance or remotely patch or upgrade the Service, which may temporarily degrade the quality of the Service or the Yottaram Content or result in a partial or complete outage of the Service or the Yottaram Content. Yottaram may also discontinue the inclusion of some or all Third-Party Services in the Service to the extent that their respective owners or publishers discontinue them or stop making them available to Yottaram.

3.5. Aggregated Statistics. Yottaram may monitor Customer’s use of the Service and collect and compile Aggregated Statistics. Yottaram may (a) make Aggregated Statistics publicly available in compliance with applicable law (except where doing so would violate a written non-disclosure agreement between the parties) and (b) 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. Yottaram will have and retain all right, title, and interest in Aggregated Statistics and all intellectual property rights therein, and Yottaram may use Customer Data that is input into the Service to compile Aggregated Statistics. “Aggregated Statistics” means data and information related to Customer's use of the Services that is used by Yottaram in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

4. Yottaram’s Responsibilities.

4.1. Availability. During the Term, Yottaram will use commercially reasonable efforts to make the online elements of the Service available 24 hours a day, 7 days a week, 365 days a year, except for: (a) planned downtime,(b) downtime resulting from downtime of Yottaram’s hosting provider or of any other Third-Party Services; and (c) force majeure events defined in this Agreement.

4.2. Safeguards. Yottaram will not disclose Customer Data to any third party or use it for any other purpose not necessary for Yottaram to provide the Service or not permitted by Yottaram’s Privacy Policy. Yottaram’s obligations under this section will not apply to the extent that any Customer Data is (a) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of Yottaram, (b) subsequently disclosed to Yottaram on a non-confidential basis by a third party not having a confidential relationship with Customer that rightfully acquired such information, (c) communicated by Yottaram to a third party with Customer’s prior written consent, or (d) disclosed by Yottaram pursuant to a subpoena, court order or request by law enforcement or otherwise required by law.

4.3. Updates. Yottaram may from time to time in its sole discretion develop and provide Service updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. Customer agrees that Yottaram has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.

4.4. Customer Support. For product support, Customer may email Yottaram at info@moodtracker.com or use the customer support feature in the Service’s interface itself to reach Yottaram.

5. Intellectual Property.

5.1. Reservation. All right, title, and interest in the Intellectual Property embodied in the Service, the Yottaram Content will belong solely to Yottaram or to the Third-Party Service that owns or licenses such Intellectual Property. Any and all Intellectual Property rights in Third-Party Services belong to their respective owners. Customer will have no rights in the Service except as this Agreement expressly grants.

5.2. Feedback. Yottaram may allow Customer to provide Yottaram with comments or suggestions about Yottaram or the Service (“Feedback”). Customer hereby grants Yottaram a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license to copy and store any Feedback and use it to develop new products, improve or modify the Service or as Yottaram may otherwise deem appropriate.

6. Customer’s Responsibilities and Use of the Service.

6.1. Customer’s Responsibilities. During the Term, Customer will (a) use the Service consistent with this Agreement and with applicable laws and (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data and Customer’s use of Customer Data with the Service.

6.2. Subscription. The Service is purchased as a subscription. Depending on the extent to which Customer actually chooses to use the Service during the Term, Customer’s actual use of the Service may not make full use of all aspects of the Service in a particular month.

7. Term and Termination.

7.1. Term. The term of this Agreement begins on the Effective Date and terminates one year later (the “Initial Term”) unless terminated earlier or extended in the ways described here. This Agreement will automatically renew for successive one-year periods (“Renewal Terms”) after the Initial Term’s end. The “Term” means the Initial Term and all Renewal Terms together.

7.2. Termination. Yottaram may terminate this Agreement and Customer’s subscription(s) under them (a) on 30 days’ notice to Customer if Customer has breached any payment obligation under this Agreement; or (b) on Yottaram’s 90 days’ notice to Customer for any reason. Customer may terminate this Agreement at any time for any reason.

7.3. Effect of Termination. Any termination of this Agreement will also contemporaneously terminate all licenses and access authorizations that it grants.

8. Fees and Payment.

8.1. Fees for Paid Versions. In consideration of Customer’s access to the Service, Customer will pay Yottaram the fee specified in the Service’s user interface for any paid versions or features that Customer may elect to use. All fees are nonrefundable.

8.2. Taxes. Each party will be responsible for its own taxes properly levied on it by virtue of its undertakings hereunder.

9. Representations and Warranties. Each party represents to the other that it has the right, power and authority to enter into and perform its obligations under this Agreement.

10. DISCLAIMERS.

The Service is provided “as is” without warranty of any kind. Yottaram disclaims all warranties to Customer and to any third party, whether express, implied or statutory, regarding the Service, including without limitation any and all implied warranties of merchantability, accuracy, results of use, reliability, fitness for a particular purpose, title, non-infringement of third-party rights and any warranties or conditions arising out of course of dealing or usage of trade. Yottaram also disclaims any warranty that the Service will be uninterrupted, error-free, virus-free, or secure, that Customer Systems will be protected from every form of attack, or that Customer will experience any particular medical or behavioral results or outcomes by using the Service.

Yottaram does not provide any warranties regarding any Third-Party Services. Any warranty on Third-Party Services will only be provided by their respective providers. Customer assumes the entire cost of all necessary servicing, repair, or correction of problems caused by viruses or other harmful components, unless such errors or viruses are the direct result of Yottaram’s gross negligence or willful misconduct.

The Third-Party Services may vary during the Term if Yottaram from time to time chooses to remove individual Third-Party Services from the Service, or if suppliers of Third-Party Services discontinue them, discontinue Yottaram’s access to them or make them available to Yottaram (to the extent Yottaram bears costs associated with making them available to Customer) on terms that Yottaram in its sole discretion deems commercially impracticable. Accordingly, Yottaram does not warrant or guarantee that any or all Third-Party Services accessible via the Service at the time of execution of this Agreement will remain accessible to Customer throughout the Term.

The disclaimers in this Section apply to the greatest extent permitted by applicable law and notwithstanding anything else in this Agreement.

We hope that you will find the Service to be useful, but please do not rely on it as a substitute for medical treatment. The Service does not provide medical treatment or advice. It is for informational purposes only. Consult a physician while using the Service, or if you experience symptoms of any illness while you use it. If you experience any emergency, immediately dial 911 or call the National Suicide Prevention Lifeline in the United States at 1-800-273-8255. If you are outside of the US, find hotlines in your country here.

11. LIMITATION OF LIABILITY.

Except with respect to either party’s confidentiality or indemnification obligations hereunder or damages arising from either party’s violation of the other party’s Intellectual Property rights, (a) neither party will be liable to the other party or to any third party for any incidental, indirect, punitive, special or consequential damages relating to this Agreement and (b) Yottaram’s aggregate liability for any and all claims relating to or arising from this Agreement under any theory will not exceed the total fees paid by Customer to Yottaram in the twelve months before the event (or earlier of the events, if multiple events) giving rise to Customer’s claim for damages against Yottaram, or $10,000, whichever is more.

Yottaram will have no liability to any third party for any losses or damages under any theory of liability.

The limitations in this Section 11 will apply to all claims for damages, whether based in contract, warranty, strict liability, negligence, tort, or otherwise, and regardless of the person bringing the claim.

This Section 11 (“Limitation of Liability”) is intended to be as inclusive as Maine law and any other applicable law permit. Customer’s agreement to this Agreement confirms that Customer has read this Section 11, fully understands it, has had the opportunity to discuss it with legal counsel of Customer’s choice, understands that through it Customer is giving up substantial rights, and intends to completely and unconditionally release liability to the greatest extent allowed by law.

12. Indemnification.

Customer will indemnify Yottaram against any and all claims, demands, liabilities and settlements, as well as third party claims and causes of action, including, without limitation, attorneys’ fees, resulting from Customer’s violation of this Agreement or use of the Service. Customer will bear the sole financial burden in connection with any such defense, including, without limitation, providing Yottaram with such information and access to Customer as Yottaram deems necessary.

13. Customer System Requirements.

The Service may not function on web browsers other than Chrome, Safari, Firefox or Microsoft Edge, or on older-than-current versions of any of the foregoing.

14. Links from the Service.

If the Service contains links to other sites and resources provided by third parties, these links are provided for Customer’s convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. Yottaram has no control over the contents of those sites or resources and accepts no responsibility for them or for any loss or damage that may arise from Customer’s use of them. If Customer decides to access any of the third party websites linked to the Service, Customer does so entirely at Customer’s own risk and subject to the terms and conditions of use for such websites.

15. General.

15.1. Reservation. Nothing in this Agreement will preclude or limit Yottaram’s rights to market, make available or license any product that Yottaram now offers or may in the future offer.

15.2. Nature of Relationship. Each party will act as an independent contractor with respect to this Agreement. This Agreement creates no agency, partnership, joint venture, other joint relationship or fiduciary relationship. Neither party may make any commitments binding on the other, nor may either party make any representation that they are acting for, or on behalf of, the other.

15.3. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement except as this Agreement may expressly provide.

15.4. Assignment. Customer may not assign or transfer any of Customer’s obligations, licenses or rights under this Agreement without Yottaram’s prior written consent. Yottaram may assign this Agreement without Customer’s prior notice or consent.

15.5. Force Majeure. Neither party will be held liable for failure to perform any obligation of or delay in performance resulting from or contributing to any cause beyond that party’s reasonable control, including without limitation any act of God, act of civil or military authority, act of war or terrorism, act (including delay, failure to act, or priority) of any governmental authority, power outages, civil disturbance, insurrection or riot, sabotage, fire, severe weather conditions, earthquake, flood, strike, work stoppage or other labor difficulty, embargo, delay in transportation or embargoes. The affected party’s obligations will be suspended solely to the extent caused by the force majeure and so long as it lasts, and the time for performance of the affected obligation will be extended by the time of the delay that the force majeure causes.

15.6. Export Regulations. Each party warrants that it will comply in all respects with any export and re-export restrictions imposed by any U.S. or foreign law to the Service. Each party represents that it is not named on any U.S. government denied-party list.

15.7. Agreement Binding on Successors. This Agreement will bind and inure to the benefit of the parties and their heirs, administrators, successors, and permitted assigns.

15.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, 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.

15.9. Waiver. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.

15.10. Entire Agreement. This Agreement is the entire understanding of the parties and supersedes all prior agreements between them concerning its subject matter. Any amendment must be in writing and expressly state that it is amending this Agreement.

15.11. Governing Law. The laws of Maine, except for conflict-of-law rules, will apply to any dispute related to the Service and to this Agreement.

15.12. Dispute Resolution. The parties will attempt to settle any dispute or claim by either of them relating to this Agreement by good-faith consultation. If such consultation yields no satisfactory resolution of the dispute or claim, then either party may submit it to arbitration in accordance with the Small Claims Rules of the American Arbitration Association ("AAA") then in effect (the "Rules"). The arbitration will be held, and the award will be rendered, in York County, Maine. The award will be final and binding on the parties as from the date rendered, and will be the sole and exclusive remedy between the parties regarding any claims, counterclaims, issues, or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof. In the case of any dispute, the prevailing party to this Agreement will be entitled to recover reasonable attorneys’ fees and costs, including expert witness fees, from the other party.

15.13. Time Limitation on Disputes. Customer will bring any claim, action or proceeding that Customer may have against Yottaram (or against any of Yottaram’s personnel, directors or officers) within one year after the cause of action has accrued or within one year after the termination of this Agreement, whichever is earlier.

15.14. Notices. Notices to Yottaram under this Agreement are accepted only when sent by email to info@moodtracker.com.

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