SaaS Agreement — General Terms

1. Definitions

Authorized User – an individual, whether an employee, a business partner, an agent, or a contractor, who is registered or authorized by Client to access and use Platform under this Agreement using the Login Credentials.

Authorized Purposes - the use of Personal Data of the employees provided by Client or Authorized User to process it by Service Provider in order to provide SaaS Services under this Agreement, including but not limited to (a) engaging by email or phone with Client or Authorized user; (b) providing maintenance support and reports; (c) detecting security incidents and investigating malicious, deceptive, fraudulent, or illegal activities; (d) debugging and troubleshooting errors on the Platform.

Confidential information means any information disclosed by a party to the other party, directly or indirectly, which could be oral or written (graphic, machine-readable, or other tangible form), is marked as “Private and Confidential” and regulated in accordance with clause 10 herein.

Client Materials - all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to the Service Provider in connection with the Services.

Intellectual Property Rights - patents, rights to inventions, copyright, and related rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Login Credentials – unique login and password created for the Client to access the Platform.

Personal Data means any information related to an identified or identifiable natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, an online identifier, email or phone number of that natural person (Client’s contact details, Service Provider’s employees and contractors details, etc).

Platform means SoMin’s.ai cloud platform, an internet-accessible cloud service available at the following address: https://cloud.somin.ai/ . The platform uses Artificial Intelligence (hereinafter AI): 

• SOADS: AI-driven long-tail targeting tool that automates targeting and optimization of your digital advertising campaigns in social networks and search engines.
• SOMONITOR: a set of dashboards with real-time insights about the audience to measure, review, and analyze, digital advertising content for competitor analysis and digital strategy development.
• SOCRAFT: a set of tools and approaches helping in content production based on SOMONITOR insights.

SaaS Services refer to internet–accessible services identified in clause 2 hereunder, provided by using the Platform for a specific time period for a charge.

Purchase Order – a commercial document issued by the Client in a format approved by the Service Provider. 

Credit Card Payment – Payment made via credit card in accordance with this contract payment duration and terms

Subscription – a specific period when the Client has access to the Platform (3, 6, 12, 18-monthly basis) and the support team services for a charge. 

2. SaaS SERVICE

2.1. This Agreement sets the terms and conditions under which the Service Provider agrees to provide the Client with a renewable, non-exclusive right to remotely access via the Internet certain Platform features and support team services according to  Subscription; and provide all other services necessary for productive use of such SaaS Services, including customization / setting up, password change management, data import /export (advertisement creatives, reports), monitoring, technical support, maintenance, training (if applicable), backup and recovery (the SaaS Services). The Agreement shall remain in effect until the last date of active Subscription.

2.2. The Service Provider grants a renewable, non-exclusive, worldwide right for Client and his Authorized users to access and use the SaaS Services. 

2.3. Service Provider will make the Platform access available to Client under this Agreement  24 hours and 7 days per week, using reasonable efforts, except:

a) Planned technical maintenance. If any, the Service Provider will give a written notice no less than seven days before such maintenance.
b) Circumstances beyond the Service Provider’s control in force majeure circumstances.

2.4. When the Service Provider receives the Purchase Order or pays for the invoice via a Payment Method, the Service Provider will send the Client Login Credentials to be used to log into the Account. These Login Credentials can be used by the Client and  Authorized users subject to this Agreement.  Client and Authorized user are responsible for keeping the Login Credentials confidentiality and not to share it with third parties.

2.5. The Service Provider is not responsible for and shall have no liability to authenticate the ID or email address of the Client or Authorized user.  The Service Provider reserves the right to prevent the Client from accessing the Platform, if the Service Provider suspects any unusual behavior or receives a Client’s notification about loss or unauthorized use of any Login Credentials.

3. SERVICE FEE

3.1. Payments for SOMIN platform setup (if applicable), quarterly SOADS subscription fee (fixed part) and quarterly SOMONITOR subscription fee (if applicable) should be made within 7 working days following the invoice issue date / via credit card within 7 working days following the Contract signature. The subsequent payments are done within 7 days from the beginning of the new quarter.

3.2. SOADS variable fee (6% of monthly media budget, exceeding $10,000 part) should be made on the monthly basis within 10 working days following the invoice issue date / via credit card within 10 working days following the end of each month.

3.3. All information essential for invoice preparation and payment (hereinafter referred to as "Payment information"), including but not limited to: 

1) The achievement or non-achievement of the KPI in the payment period,
2) The exact amount of the advertising budget in the payment period,
3) All the calculations required,
4) The final sum to be paid,
5) Other information essential for the calculation of the cost of Services, 

must be agreed upon no later than 5 working days after the end of the Payment period specified in the Commercial Proposal above. 

3.4. The process of agreeing on Payment information should be as follows: 

1) On the day following the end of the Payment period, the Service Provider sends its version of the Payment Information to the Client by email, Slack, Whatsapp or any other messenger.
2) If the Client does not dispute the content of the e-mail/message with the Payment information within 5 working days, the parties have agreed to use the version of the Payment Information provided by the Service Provider. Otherwise, the parties shall negotiate
3) Within 5 working days after the Payment information has been agreed upon, the Service Provider sends the Client an invoice for the SOADS variable fee payment / the Client should pay the SOADS variable fee by card. 

3.5. The payment shall be made via a bank transfer or credit card payment without any deductions and bank fee expenses.

3.6. SAAS Service fees include limited marketing support & consulting hours as indicated in the selected Subscription Plan. Any additional hours of the marketing support & consulting will be charged separately.

3.7. Subscription renewal. If Client keeps using Platform after the last day of the Subscription, the next Subscription term will start automatically at the end of the current Subscription unless Client expressly requests to cancel it.

3.8. Cancel Subscription. Client can cancel the Subscription at any time by sending a 14-day notification to the Service Provider. If the Client cancels the running Subscription before the end of the agreed Term indicated above, the Service Provider may charge a cancellation fee depending on the unused time period of the running Subscription. 

3.9. Account cancellation. If Client submits a request for cancellation, no additional charges will be made. However, no refunds are provided upon cancellation. If Client cancels before upcoming renewal date, Client will have access to Account until the current Subscription term ends. 

4.     CLIENT RESPONSIBILITIES
4.1. When required and necessary the Client shall provide the Service Provider with  access to his business manager account on social networks, to an advertising account, and a pixel in the Client's social media account, which are necessary to connect to the Platform and deliver the SaaS services on time, including but not limited 

• Advertising Business Manager account access (e.g. Meta Business Manager, etc.), tracking and attribution analytics access (i.e. Meta Pixel, Google Analytics, AppsFlyer, etc), Social Media Business Page Access (e.g. Meta Business Page, etc.). 
• Within five working days from the Effective date the Client shall provide the Service Provider a Campaign Shell* to enable the Service Provider to deliver SaaS Services and launch advertising campaigns on time. 

*Campaign Shell is an advertising campaign created by the Client and includes the following information: the optimization type, budget, period,  conversion event name, creative, text, and URL parameters. It does not include targeting groups as it is generated by the Platform. The Client shall provide the name/ID of this Campaign Shell. The Service Provider will integrate it with the Platform.

The Client acknowledges that the Service Provider‘s ability to deliver the SaaS Services in the manner provided herein depends upon the accuracy and timeliness of such information and assistance.

4.2.  The Service Provider is not obliged to create advertising campaign content for the Client.

4.3 The Client acknowledges and agrees that the Service Provider may process the Client’s audience data in order to provide reports about the kinds of people seeing the ads and how the ads are performing. The Parties do not share any personally identifiable information. The Service Provider will process anonymised and aggregated statistical and analytical data, generated by the Platform;  

PURPOSE OF PROCESSING: The Parties can use this anonymized and aggregated statistical and analytical data for internal marketing analysis, scientific research, product development purposes and to identify trends and insights.

4.5.   The Client shall comply with all applicable local, and national regulations in connection with its use of the SaaS Services, including those laws related to data protection, international communications, and the transmission of technical or personal data.

4.6.  The Client acknowledges that the Service Provider exercises no control over the advertising content of the advertising information transmitted by the Client through the SaaS Services. The Service Provider takes no responsibility or liability for any errors or omissions in the advertising content of the Client.

4.7.   The Client shall not upload, reproduce, or distribute any technical or commercial information, software, or other material protected by copyright, privacy right, or any other intellectual property right without first obtaining the permission of the Service Provider.

4.8.   Subject to the terms and conditions of this SaaS Agreement, the Client shall grant to the Service Provider a limited, non-exclusive, and non-transferable license to copy, store, perform, use, display, and transmit the Client’s advertising content as necessary to provide the SaaS Services hereunder.

4.9.   The Client shall report to the Service Provider immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by the Client.

4.10. The Client hereby authorizes the Service Provider to use the Client’s brand name, logo, and aggregated campaign statistics data in order to promote the SaaS services among potential clients.

4.11 Payments of any withholding tax or other taxes applicable to the Client under this Agreement are the sole responsibility of the Client.

4.12 The Client is required to pay for the services provided by the Service Provider. For each day of late payment, a late fee of 0.1% of the total Contract value per day will be incurred. However, the total accumulated late fees shall not exceed 20% of the total Contract value.

4.13. The Client is responsible for collecting, putting in, and updating all advertising content stored on the host and for ensuring that the advertising content does not:

• include anything that actually or potentially infringes the copyright trade secret, trademark or other intellectual property right of any third party,
• contain anything that is obscene, defamatory, harassing, offensive or malicious.

5.  RESTRICTIONS
5.1.     The Client shall not and shall not permit anyone to

• Copy, republish, or redistribute any content or material of the SaaS Services or information provided by the Platform, apart from the internal use;
• Make the SaaS Services available to any person other than Authorized Users;
• Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the software used to provide the SaaS Services;
• Access the SaaS Services or use the documentation in order to build a similar product or competitive product;

5.2. The Platform analyses, generates, and updates the unique compilation of interests that embody the targeting section of each AdSet/campaign. Such compilation is an integral part of the Service Provider's intellectual property and shall not be copied or infringed in any other way by the Client and/or his Authorized users.

6. SERVICE PROVIDER RESPONSIBILITIES
6.1. The Service Provider shall be responsible for establishing and maintaining a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to:

• Ensure the security and confidentiality of the Client data;
• Protect against any anticipated threats or hazards to the security or integrity of the Client data;
• Protect against unauthorized disclosure, access to, or use of the Client data;
• Ensure the proper disposal of the Client data;
• Ensure that all employees, agents, or subcontractors of the Service Provider, if any, comply with all of the foregoing.

6.2.    During the Term the Service Provider shall not reduce or eliminate functionality in the SaaS Services.

6.3.    The Service Provider shall use the data received from Client hereunder for the sole and exclusive purpose of providing SaaS Services. The Service Provider shall keep and maintain Client data in strict confidence, using such degree of care as is appropriate and consistent with its obligations hereunder to avoid unauthorized access, use, disclosure, or loss.

6.4.   On a monthly basis, in arrears and no later than the 20 calendar days of the subsequent month following the reporting month, the Service Provider may provide reports to Client, describing the results of the AI advertising campaigns run via the Platform upon the request.

6.5.    The Services Provider will use the best endeavors to provide the SaaS services aimed at achieving the best results that the Platform may deliver; to ensure the technical functioning of the Platform around the clock, seven days a week, including weekends and holidays, except for the time of technical maintenance (if any, the Service Provider shall give a written notification no less than 7 days before such maintenance);

6.6.    During the Term the Service Provider provides technical support, the SaaS Service fee is inclusive of the fees for the technical support. The Service Provider provides technical support to ensure the functioning of the Platform. Technical support is carried out in the form of elimination of failures in the functioning of the Platform based on the Client’s requests. Technical support is provided in the following manners: 

Severity Level 1: Response time - Within 12 hours, Resolution time - 10 days 

Severity Level 2: Response time - Within 12 hours, Resolution time - 15 days 

Severity Level 3: Response time - Within 24 hours, Resolution time - 20 days 

Severity Level 4: Response time - Within 24 hours, Resolution time - 10 days 

Level 1

• A problem that leads or is likely to lead to a serious restriction or non-function, non-accessibility of the Platform. 
• Loss of control and monitoring of the modified parts of the Platform or its parts.
• Failure in billing/accounting systems of the Platform.
• Failure of the main device in the modified Platform

Level 2

• Significant or ongoing interruption of critical function of the modified Platform.
• Inability to reconfigure the modified Platform.
• Failure of the backup device/part in the modified Platform.

Level 3

• Minor or limited interruption of non-critical function of the modified Platform.
• Failure to obtain statistical information.

Level 4

General questions pertaining to the SaaS services or problems not included in above levels

7. OWNERSHIP and INTELLECTUAL PROPERTY
7.1. The Service Provider retains all ownership and intellectual property rights to the SaaS services and anything developed and delivered under the Agreement

7.2. In relation to the reports prepared by the Service Provider at the end of the Subscription term (Deliverables):

• the Service Provider and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Client Materials;
• the Service Provider grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free license during the term of this agreement to copy and modify the Deliverables (excluding the Client Materials) for the purpose of receiving and using the Services and the Deliverables in its business; and
• the Client shall not sub-license, assign, or otherwise transfer the rights granted in clause 5(b).

8. TECHNICAL SUPPORT

8.1. During the Term and at the Service Provider’s expense, the Service Provider will provide the Client telephone or electronic correspondence support during the Service Provider’s normal business hours in order to help the Client correct/solve problems with the Platform, and internet-based support.

8.2. During the Term the Service Provider provides warranty technical support to ensure the functioning of the Platform. Technical support of the Platform is made in the form of elimination of failures in the software functioning based on the Client's requests.

9. MAINTENANCE SUPPORT

9.1. During the Term the Service Provider shall provide bug fixes, corrections, modifications, enhancements, upgrades, and new releases to the Platform (the Maintenance Services) to ensure the functionality of the Platform is available to the Client.

9.2. The Service Provider may suspend the SaaS Services for a period of no more than 12 hours per month and no more than 6 hours in a row to carry out the necessary scheduled preventive and repair works on the technical resources of the Platform, providing no less than 30 calendar day’s written notice;  as well as unscheduled work in emergency situations, providing as much prior notice as commercially practicable. 

9.3. The Service Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Client to the Service Provider under this Agreement is overdue, and the Service Provider has given to the Client at least 30 days written notice, following the amount becoming overdue.

10. CONFIDENTIALITY
10.1. During the term of this SaaS Agreement and for three years thereafter, each party shall treat as confidential all Confidential information except to exercise its rights and perform its obligations under this SaaS Agreement, and shall not disclose such Confidential Information to any third party.

10.2.  The Service Provider’s Confidential Information means any information that is not public knowledge and that is obtained in the course of, or in connection with, the provision and use of the SaaS Services.

10.3.  Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party.

10.4. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble, or decompile any prototypes, Software, or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performances of their services on behalf of the receiving party. 

10.5. Confidential Information excludes information that:

• Is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party;
• Is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party no bound by confidentiality obligations to the disclosing party, or
• Is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party.
• The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other government authority. Provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.

10.6. Each party may disclose the existence of this SaaS Agreement and the relationship of the parties, but agrees that the specific terms of this SaaS Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this SaaS Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors.

10.7. Upon termination of this Agreement, in whole or in part, each party shall, within 14 calendar days from the date of termination,

• return to the party any and all Confidential Information received from the other party or created or received by a party on behalf of the other party or
• destroy such Confidential Information and certify it in writing.

10.8. Personal data.  “Disclosing party” means the party disclosing Confidential Information to the other party, including any affiliate of such other party. “Receiving party” means the party receiving Confidential Information from the other party, including any affiliate of such other party.

The Disclosing Party warrants that it has taken all reasonable steps to enforce the rights of persons whose personal data it may transfer to the Receiving Party under this SaaS Agreement, including:

(i) notified such person about the processing of their personal data, about the purposes and grounds for the processing of data, as well as the intended users of the data, and obtained their consent to such processing;

(ii) provided them with information about the Receiving Party as the operator processing their personal data under this Agreement.

The Disclosing Party guarantees that it has the right to transfer personal data to the Receiving Party. The Disclosing Party will reimburse the Receiving Party for all losses and expenses incurred in connection with the failure of the Disclosing Party to fulfill its obligations under this paragraph.

11.  WARRANTY
11.1. Each party warrants that it has full power and authority to enter into, and perform its obligations under this Agreement:

11.1.1. It is a business duly incorporated, validly existing and in good standing under the laws of incorporation.

11.1.2. It has all requisite corporate power, financial capacity and authority to execute, deliver and perform its obligations under the Agreement.

11.1.3. The execution, delivery and performance of this Agreement has been duly authorized.

11.2. The Service Provider represents and warrants that it is in the business of providing the SaaS Services. The Service Provider is the owner of the Platform and has all necessary rights in the SaaS Services to grant an access to Client.

12. LIMITATION ON LIABILITIES

12.1. Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative or that could not have reasonably been foreseen on entry into this Agreement.

12.2. Notwithstanding any other provision set forth herein, neither party shall be liable for any indirect, special and / or consequential damages arising out of or in connection with this Agreement; provided, however, that the foregoing exculpation of liability shall not apply with respect to damages incurred as a result of the gross negligence or willful misconduct of a party. A party shall be liable to the other party for any direct damages arising out of or relating to its performance or failure to perform under this Agreement; provided, however, that the liability of a party, whether based on an action or claim in contract, equity, negligence or otherwise for all events, acts or omissions under this Agreement shall not exceed the fees paid or payable under this Agreement, and provided, further, that forgoing limitation shall not apply to: 1) damages caused by a party’s gross negligence or willful misconduct 2)party’s breach of obligations of confidentiality as described in the Agreement. This section shall survive the termination of the Agreement.

13. TERM and TERMINATION

13.1. The Initial term of this Agreement shall commence on the Effective Date and end the last day of the subscription, subject to clause 13.2.

13.2. Unless either party provides a written notice of the termination to the other party at least 14 days before the end of Initial Term and if the subscription has been kept running, this Agreement shall automatically extend for the same duration. 

13.3. The Client may terminate this Agreement at any time by giving the Service Provider 14-days prior written notice. 

• Upon termination, unless otherwise agreed between the parties, all discounts accrued for the long term Subscription shall be automatically withdrawn and the Client shall pay the difference between the initial discounted price under the Agreement and the full price calculated for services provided from the Effective day until the termination date.
• Upon termination the Client shall be obliged to pay, within ten working days of the effective day of termination, all amounts owing to the Service Provider for provided Services. Any payments made before the termination date are not refunded

13.4. The Service Provider may terminate this Agreement at any time by given the Client a 14-days prior written notice, if the Client fails to pay the SaaS Service fee within 45 days after the receipt of Payment information from the Service Provider (or the monthly fee on time three times over any 12 months period, if applicable).

14. ENTIRE AGREEMENT
14.1.   This Agreement and its attached exhibits constitute the entire agreement between the parties and supersede any and all previous representations, understandings, agreements between the parties as to the subject matter hereof.

14.2. Clauses which, by their nature, are intended to survive termination of this Agreement, including clause 7, 10 and 12 continue to stay in force.

14.3.  If any part or provision of this Agreement is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.  If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms.  The remaining terms of the Agreement shall stay binding.

14.4. Any variations to the Agreement terms must be in writing and signed by both parties.

14.5. The Client cannot assign, novate, subcontract or transfer any right or obligation hereunder.

15.    GOVERNING LAWS
15.1.   Any dispute, controversy or claim arising out of or in connection with this Agreement must be submitted for mediation at the Singapore Mediation Centre (SMC) in accordance with SMC’s Mediation Procedure in force for the time being. Any party may submit a request to mediate to SMC upon which the other party will be bound to participate in the mediation within 45 days thereof. Every party to the mediation must be represented by senior executive personnel or, at least, the seniority of a Head of department or its equivalent, with authority to negotiate and settle the dispute. Unless otherwise agreed by the parties, the Mediator(s) will be appointed by SMC. The mediation will take place in Singapore in the English language and the parties agree to be bound by any settlement agreement reached.

15.2.  If, and to the extent that, any such dispute, controversy or claim has not been settled pursuant to the mediation within 90 days of the commencement of the mediation, it shall, upon filing of a request for arbitration by either party, be settled by arbitration court as agreed in clause 15.3.

15.3.  Any dispute, controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by the Singapore International Arbitration Centre (SIAC) in accordance with the SIAC Rules for the time being in force, which rules are deemed to be incorporated by reference in clause. The seat of the arbitration shall be Singapore. The tribunal shall consist of one arbitrator. The language of the arbitration will be English.

15.4. The Agreement is governed by the laws of Singapore.