SaaS Agreement

Software as a Service Agreement

This Software as a Service Agreement is entered into by and between Tango Analytics, LLC, a Delaware limited liability company, located at 9797 Rombauer Rd. Suite 450, Dallas Texas 75019 (“Tango”) and [___________], located at [________] (“Subscriber”) and is effective as of [DATE] (the “Effective Date”).

WHEREAS, Tango provides software-as-a-service offerings to its customers;

WHEREAS, Subscriber desires to access certain software-as-a-service offerings as set forth in one or more Order Forms, and Tango desires to provide Subscriber access to such offerings, subject to the terms and conditions set forth in this Agreement;

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

1. Definitions.
   
   1. “Action” means any claim, action, cause of action, demand, lawsuit, mediation, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
   2. An “Affiliate” of either Party means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management of such Party, whether through the ownership interest, control of more than 50% of the voting securities, by contract, or otherwise.
   3. “Applicable Law” means the laws and regulations of the United States of America and the State of Texas (excluding any conflict of law principles that would result in the application of the laws of any other jurisdiction) together with any other laws and regulations that are directly applicable to Tango in connection with its provision of the of the SaaS Services.
   4. “Authorized Users” means Subscriber’s employees, consultants, contractors, and agents for whom access to the SaaS Services has been purchased by Subscriber pursuant to this Agreement, who are authorized by Subscriber to access and use the SaaS Services, and who are not also employees, consultants, contractors or agents for a technology provider that develops, markets or sells products or services similar to the SaaS Services.
   5. “Basic Support” means the support services made available by Tango to assist Subscriber in the use of the SaaS Service, and includes (i) access to the Tango’s help desk or ticketing system, (ii) provision of regularly scheduled updates, upgrades and patches to the SaaS Service, (iii) system administration services and self-service tools such as Authorized User provisioning and deprovisioning, and (iv) error diagnosis and assistance with standard reports, standard dashboards, standard APIs, and standard integration
   6. “Confidential Information” means non-public information in any form or medium (whether oral, written, or electronic) that the Disclosing Party considers confidential or proprietary, including without limitation information consisting of or relating to the Disclosing Party’s business, technology, operations, finances, pricing, customers, product development plans, forecasts, strategies, software, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, trade secrets, inventions (whether or not patented or patentable), schematics, and other intellectual property, in each case whether or not marked, designated, or otherwise identified as “confidential”.
   7. “Documentation” means any manuals, instructions, or other documents or materials that Tango provides or makes available to Subscriber in any form or medium and which describe the functionality, components, features, or requirements of the SaaS Services, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
   8. “Enterprise Support” includes support services provided by Tango to support any non-standard Professional Services completed as part of a mutually agreed SOW including: dynamic attribution support, non-standard field support, non-standard dashboard support, non-standard reports support, non-standard workflow support, non-standard configuration support and non-standard integrations support.
   9. Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
   10. “Losses” means those actual losses, damages, deficiencies, claims, judgments, settlements, interest, awards, penalties, fines, costs, or expenses (including reasonable attorney’s fees) related to a Party’s right to indemnification by the other Party.
   11. “Order Form” means a written or electronic order form that (i) references this Agreement; (ii) specifies the SaaS Services, Support services and/or Training to be provided, the Subscription Period, number of Authorized Users, other quantities (if any), subscription and/or applicable fees, and other transaction-specific details; and (iii) is signed by the Parties.
   12. “Party” refers to Tango or Subscriber individually.
   13. “Parties” refers to Tango and Subscriber collectively.
   14. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity that is not a party to this Agreement.
   15. “Professional Services” means planning, onboarding, implementation and configuration services provided by Tango in accordance with a SOW.
   16. “Usage Data” means any and all data and information related to the provision, use and performance of the SaaS Services that is used by Tango in an aggregate and anonymized manner to operate, understand, analyze and improve the SaaS Services.
   17. “SaaS Services” means the one or more software-as-a-service applications, and related Support and Training, made available by Tango under this Agreement and as identified in an Order Form.
   18. “Sensitive Personal Data” includes the meaning ascribed to it in Article 9 of the EU General Data Protection Regulation and the definition of “sensitive personal information” as defined in California Civil Code section 1798.140.
   19. “Statement of Work” or “SOW” means a written or electronic document that (i) references this Agreement; (ii) specifies the Professional Services to be performed by Tango and the fees to be paid by Subscriber; and (iii) is executed by the Parties.
   20. “Subscriber Data” means the information and data that is provided, directly or indirectly, by Subscriber or an Authorized User to Tango by or through the SaaS Services. For the avoidance of doubt, Subscriber Data does not include Usage Data.
   21. “Tango Property” means the SaaS Services (including, without limitation, any and all configurations, developments, modifications, improvements and derivative works related thereto); Support services (including Basic Support and Enterprise Support); Training services; Documentation; Feedback; Tango Confidential Information; Usage Data and any information, data, or other content derived from Tango’s monitoring or operation of the SaaS Services; information technology infrastructure used by or on behalf of Tango (whether operated by Tango or through the use of third-party services), including, without limitation, computers, software, hardware, databases, electronic systems, database management systems, and networks; provider systems; any and all information, specifications, technical descriptions, data, documents, materials, work product, reports, content, concepts, inventions (whether or not patented or patentable), drawings, designs, text, graphics, methods, devices, processes, methodologies, equipment, hardware, software (whether developed by Tango , either alone or with others, and whether completed or in-progress), programs, source code, requirements, plans, trademarks, names, logos, button icons, images, trade dress, images, deliverables; created by, provided to or used by Tango in connection with the SaaS Services or Professional Services; and any Intellectual Property Rights in the foregoing.
   22. “Taxes” means all present and future taxes, levies, duties, imposts, fees, withholdings, assessments, or similar charges of any kind (including, without limitation, sales, use, value-added, goods and services, excise, gross receipts, consumption, privilege, or other transaction taxes), together with any related interest, penalties, or additions thereto, imposed by any governmental authority in connection with this Agreement, the SaaS Services, or the Professional Services.
   23. “Third-Party Materials” means information, in any form or medium, including any open-source or other software, documents, data, or content of, relating to or used in connection with the SaaS Services that are not the proprietary of Tango or Subscriber.
   24. “Training” the services provided by Tango to instruct and educate Subscriber’s Authorized Users in the proper use and functionality of the SaaS Service, and may include virtual instructor-led sessions, on-demand e-learning modules, user guides, reference materials and/or custom training sessions delivered at the schedule and location defined in the applicable Order Form or SOW.
2. SaaS Services.
   
   1. Order Forms. The SaaS Services shall be ordered by Subscriber pursuant to the execution of one or more Order Forms. Upon execution, each Order Form shall be deemed incorporated into and governed by this Agreement as if fully set forth herein. In the event of a conflict between the terms of this Agreement and any Order Form, the terms of the Order Form shall control solely with respect to the SaaS Services described in that Order Form.
   2. Access and Use. Subject to the terms and conditions of this Agreement and Subscriber’s timely payment of the fees, Tango grants Subscriber a limited, non-exclusive, non-transferable right to permit Authorized Users to access and use the SaaS Services during the Subscription Period for the sole benefit of Subscriber and Subscriber’s internal business purposes. The total number of Authorized Users will not exceed the number set forth in the applicable Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
   3. Documentation License. Upon execution of the applicable Order Form, Tango grants to Subscriber a non-exclusive, non-sublicensable, non-transferable license to access and use the Documentation during the Subscription Period solely by the Authorized Users and solely for the benefit of Subscriber and Subscriber’s internal business purposes.
   4. System and Data Control. As between the Parties, (i) Tango has and retains sole ownership and control over the operation, provision, maintenance and management of the Tango Property; (ii) Subscriber has and retains sole ownership and control over the operation, provision, maintenance and management of the Subscriber Data and the Subscriber Systems. Subscriber is solely responsible for monitoring and managing its Authorized Users.
   5. Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to the Tango Property or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Tango Property and the Third-Party Materials are and will remain with Tango and the respective rights holders in the Third-Party Materials. To the extent that Subscriber or any Authorized User obtains any Intellectual Property Rights in and to the Tango Property, Subscriber hereby assigns to Tango, its successors and assigns, all right, title and interest in and to such Intellectual Property Right.
   6. Changes. Tango reserves the right, in its sole discretion and without notice to Subscriber, to make any changes to the Tango Property that it deems necessary or useful to: (a) maintain or enhance: (i) the quality, security, functionality or delivery of the SaaS Services; (ii) the competitive strength of or market for Tango’s SaaS Services; or (iii) the cost efficiency or performance of the SaaS Services, Support and/or Training; or (b) to comply with Applicable Law. No change to the SaaS Services will materially reduce the functionality of the SaaS Services.
   7. Feedback. Any suggestion or idea provided by Subscriber or an Authorized Users to Tango regarding the SaaS Services, Support and/or Training (“Feedback”) shall be owned exclusively by Tango, shall not constitute Confidential Information, and nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict Tango’s right to use, profit from, disclose, publish, or otherwise exploit any Feedback, without compensation to Subscriber or its Authorized Users, or provide Subscriber or any Authorized User with any rights thereto. Feedback does not include Subscriber Confidential Information or Subscriber Data.
   8. Third Party Materials. Certain SaaS Service modules make content provided by third parties available to Subscriber. The use of such Third Party Materials is subject to the following terms and conditions:
      
      1. Subscriber may not download, copy, transmit, sell, or sublicense any Third Party Materials to any person or third party.
      2. Tango reserves the right to substitute equivalent Third Party Materials from other vendors at any time and without notice.
      3. Third Party Materials is provided “as is” and without any warranties of any kind, express or implied.
      4. Upon termination of this Agreement, Subscriber’s license to access and use the Third Party Materials also terminates and Subscriber must discontinue its use of Third Party Materials and irrevocably erase all Third Party Materials (including copies and extracts thereof) in Subscriber’s possession.

   Aggregated Information. Tango will use Usage Data to develop and improve the SaaS Services and other Tango offerings.

3. Support Services.
   
   1. Basic Support. Basic Support is included with each SaaS Service in accordance with the policies located here https://tangoanalytics.com/info/tango-support/ as may be updated from time to time in Tango’s sole discretion.
   2. Enterprise Support. Enterprise support is available for an additional fee as set forth in the applicable Order Form.
   3. Availability and Service Level Credits. Tango commits to make the SaaS Services available at least 99.5% of the time, exclusive of System Maintenance or Force Majeure Events in accordance with Tango’s Service Level Policies located here: https://tangoanalytics.com/tango-SLA/.
4. Training Services. Tango will provide Training in accordance with the terms of the applicable Order Form.
5. Restrictions on Use; Service Suspension.
   
   1. Subscriber shall not, and shall not permit any Authorized User or other Person to, access or use the Tango Property except as expressly permitted by this Agreement. Subscriber shall not: (a) allow or permit use of the SaaS Services by any Person other than its Authorized Users; (b) use or access the SaaS Services for the purpose of building a competitive product or for purposes of competitive analysis; (c) copy, frame, modify or create any derivative works of the SaaS Services (or any component, part, feature, function, user interface, or graphic thereof) or the Documentation or Third Party Materials (if applicable), except with the prior written consent of Tango or to the extent such restriction is prohibited by Applicable Law; (d) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the SaaS Services is compiled or interpreted; (e) use the SaaS Services as part of a time-share, cloud services or service bureau or on a hosted basis for its own application service provider or software as a service offering; (f) perform any benchmark or performance tests of the SaaS Services without Tango’s prior written consent; (g) perform any security testing of the SaaS Services or associated infrastructure without Tango’s prior written consent including, but not limited to, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; (h) damage, remove, obscure or modify any markings or any notice of Tango’s or its licensors’ proprietary rights; (i) use the SaaS Services in violation of Applicable Law; (j) send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (k) send or store malicious code in connection with the SaaS Services; (l) interfere with or disrupt performance of the SaaS Services or the data contained therein; (m) attempt to gain access to the SaaS Services, the Third Party Materials (if applicable) or its related systems or networks in a manner not set forth in the applicable Documentation; (n) access or use the SaaS Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Tango customer), or that violates any applicable Law; or (o) cause or permit any Authorized Users or any other Person to do any of the foregoing.
   2. Suspension of Service. Tango may, directly or indirectly, by any lawful means, suspend, terminate, or otherwise deny Subscriber and its Authorized User’s access to or use of all or any part of the SaaS Services, or Tango Property, without incurring any resulting obligation or liability, if: (a) Tango receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Tango to do so; or (b) Tango believes that: (i) Subscriber or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the SaaS Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Subscriber or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the SaaS Services; or (iii) this Agreement expires or is terminated. This Section 5.b. does not limit any of Tango’s other rights or remedies, whether at law, in equity, or under this Agreement.
6. Subscriber Obligations.
   
   1. Subscriber has and will retain sole responsibility for: (a) all Subscriber Data, including its content and use thereof, including updating when necessary or advisable; (b) all information, instructions, and materials provided by or on behalf of Subscriber or any Authorized User to Tango in connection with the SaaS Services; (c) Subscriber’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Subscriber or through the use of third-party services (”Subscriber Systems”); (d) the security and use of Subscriber’s and its Authorized Users’ login information; and (e) all access to and use of the SaaS Services directly or indirectly by or through the Subscriber Systems or its Authorized Users’ login information, with or without Subscriber’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Login credentials may not be used or shared by multiple individuals.
   2. Subscriber shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all login information and protect against any unauthorized access to or use of the SaaS Services; and (b) control the content and use of Subscriber Data, including the uploading or other provision of Subscriber Data for processing by the SaaS Services.
   3. If Subscriber becomes aware of any actual or threatened activity prohibited by Section 5.a., Subscriber shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the SaaS Services and Tango Property and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Tango in writing of any such actual or threatened activity.
7. Subscriber Data.
   
   1. Ownership. As between Subscriber and Tango, Subscriber is and will remain the sole and exclusive owner of all right, title, and interest in and to all Subscriber Data, including all Intellectual Property Rights thereto.
   2. License to Tango. Subscriber hereby grants all rights and permissions in or relating to Subscriber Data as may be necessary or useful to Tango to provide the SaaS Services to Subscriber and to fulfill Tango’s obligations hereunder.
   3. Personally Identifiable Information. Tango’s data privacy addendum is located here https://tangoanalytics.com/tango-dpa/ (the “DPA”). Subscriber is expressly prohibited from submitting, transmitting or providing Sensitive Personal Data to Tango or the SaaS Services. Tango will have no responsibility or liability for the receipt, access, use, processing or storage of Sensitive Personal Data. To the extent that Subscriber requires that Sensitive Personal Data be used in connection with the SaaS Servies, the Parties may execute an Order Form which will specifically state (i) the Sensitive Personal Data to be provided by Subscriber, and (ii) any additional terms applicable to the SaaS Services.
8. Security.
   
   1. Tango maintains a written information security program designed to protect the confidentiality, integrity, and availability of the Subscriber Data and the SaaS Services. Such program includes administrative, physical and technical safeguards appropriate to the nature of the SaaS Services and the information processed. Tango’s security program is designed to align with generally accepted industry standards and is periodically reviewed and updated in Tango’s discretion to address evolving security risks and business practices.
   2. Tango obtains an annual Service and Organization Controls (SOC) 2 Report covering the SaaS Services. A summary or redacted copy will be made available to Subscriber upon request and subject to Section 11 confidentiality obligations.
   3. Tango maintains commercially reasonable backup and disaster recovery procedures designed to support the availability of the SaaS Services and protect Subscriber Data.
   4. Nothing in this Agreement shall be construed as granting Subscriber audit rights or requiring Tango to disclose security-sensitive information beyond what is reasonably necessary to demonstrate compliance with this Section 8.
9. Fees; Invoicing and Payment Terms; Taxes.
   
   1. Fees. Subscriber agrees to pay Tango the fees set forth in each Order Form. SaaS Service subscription fees are due annually in advance of the Subscription Period. Professional Service fees are invoiced monthly unless otherwise stated in the Order Form.
   2. Invoices. Tango shall issue invoices for all fees and charges due under this Agreement in accordance with the applicable Order Form. Unless otherwise specified in an Order Form, all invoices shall be due and payable within thirty (30) days from the date of the invoice. All payments shall be made in the currency stated on the invoice and to the account designated by Tango on the invoice.
   3. Payment Obligations. Subscriber’s obligation to pay all fees is non-cancellable and non-refundable, except as expressly provided in this Agreement. Subscriber shall not withhold, offset, or reduce any payments due to Tango for any reason, including any alleged counterclaim or dispute. Subscriber acknowledges that timely payment is a material condition of Tango’s provision of the SaaS Services.
   4. Late Payments. Any undisputed amount not received by the due date shall accrue interest at the rate of 1.5% per month (or the maximum rate permitted by Applicable Law, if less) from the due date until paid in full. In addition to its other remedies, Tango may suspend Subscriber’s access to the SaaS Services or terminate this Agreement for non-payment upon written notice if payment remains outstanding for more than sixty (60) days after Subscriber’s notice of default. Subscriber shall reimburse Tango for all costs of collection, including reasonable attorneys’ fees and expenses, incurred in enforcing Tango’s rights under this Agreement.
   5. Credit Card Payments. If Subscriber elects to pay any invoice by credit card, Tango may assess a surcharge equal to six percent (6%) of the amount paid by credit card, to the extent permitted by Applicable Law, which shall be added to the applicable invoice and shall be due and payable together with the underlying invoice amount. Subscriber agrees to pay any such surcharge. No surcharge shall apply to payments made by ACH, wire transfer, check, or any other payment method accepted by Tango.
   6. Taxes. All fees and charges under this Agreement are exclusive of Taxes. Subscriber shall be solely responsible for, and shall timely pay, all Taxes. If Subscriber is required by law to withhold or deduct Taxes from any payment due to Tango, Subscriber shall increase such payment as necessary so that Tango receives the full amount that would have been payable had no such deduction been required, and shall promptly provide documentation of such remittance to the applicable authority. If Subscriber claims exemption from any Taxes, Subscriber shall provide Tango with a valid and property executed tax exemption certificate relevant to the taxing authority before the applicable payment is due. Tango has no obligation to honor any claimed exemption without such documentation.
   7. Disputed Amounts. Subscriber may in good faith dispute any portion of an invoice by providing written notice to Tango within ten (10) days of the invoice date. Such notice must include a reasonable description of the disputed amount and the basis for the dispute, along with any supporting documentation. Subscriber remains obligated to pay all undisputed amounts of the invoice by the applicable due date. Payment of the disputed portion may be withheld by pending resolution of the dispute. The Parties shall work in good faith to resolve any such dispute within thirty (30) days following Tango’s receipt of Subscriber’s dispute notice. If the parties are unable to resolve the dispute within that period, either party may escalate the matter to senior management for further review. Upon resolution, any amounts determined to be payable shall be promptly paid within ten (10) days after resolution.
10. Term and Termination.
    
    1. Term. The term of this Agreement shall commence on the Effective Date and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect for a period of three (3) years (the “Initial Term”). This Agreement will automatically renew for additional periods of three (3) years (each a “Renewal Term”) unless terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least ninety (90) days prior to the expiration of the Initial Term or then-current Renewal Term. The Initial Term and each Renewal Term are collectively the “Term”.
    2. Subscription Term. Subscriber’s subscription to each SaaS Service will begin on the effective date of the Order Form for the SaaS Servies identified therein and continue for the period of time identified in the Order Form (the “Subscription Period”). Subscription Periods are non-cancellable except as expressly stated in the applicable Order Form.
    3. Termination for Cause. This Agreement may be terminated by either Party, subject to first complying with the Dispute Resolution procedures in Section 15, for the other Party’s material breach of its obligations under the Agreement if such breach is not cured within thirty (30) days of the breaching Party’s receipt of written notice of the breach that describes the breach in reasonably sufficient detail. A termination for cause will simultaneously terminate all Order Forms (and all SaaS Services).
    4. Termination for Lack of Order Form. Provided there are no active Order Forms in effect, this Agreement may be terminated by either Party at any time upon written notice to the other Party.
    5. Effective of Termination. Subscriber’s access and use of the SaaS Service shall cease on the earlier of the end of the Subscription Period or the last date of any termination notice period (the “Termination Date”). Subscriber agrees to pay Tango all outstanding and unpaid invoices within 30 days of Subscriber’s receipt of Tango’s final invoice. Subscriber will be permitted to continue to access the SaaS Services for a period of thirty (30) days following the Termination Date for the sole purpose of copying or downloading its Subscriber Data, provided that (i) Subscriber pays, in advance, any fees owed as of the Termination Date as well as a pro-rata monthly portion of the most recent annual subscription rate, and (ii) the Subscription was not terminated by Tango for Subscriber’s uncured breach. Any additional termination or transition services must be mutually agreed and will be charged at Tango’s then-current rates.
    6. Survival. Sections 11, 14, 15, 16, 17, 18, 19, 21, 24 will survive the expiration or termination of this Agreement.
11. Confidential Information.
    
    1. The Party receiving Confidential Information (the “Receiving Party”) from the other Party (the “Disclosing Party”) agrees that during the Term and for a period of one (1) year thereafter that the Receiving Party will (i) hold the Disclosing Party’s Confidential Information in strict confidence, (ii) take all reasonable precautions, but no less than the degree of care it uses to protect its own Confidential Information, to protect the confidentiality of the Disclosing Party’s Confidential Information, (iii) not divulge the Disclosing Party’s Confidential Information, or any portion thereof, to any Person, other than the Receiving Party’s employees and then on a need-to-know basis; (d) not use the Disclosing Party’s Confidential Information for any purposes other than in connection with the SaaS Services contracted for hereunder or such other purpose that the Disclosing Party may authorize in writing from time to time. Notwithstanding the foregoing, the Receiving Party’s obligations under this Section 11 with respect to any Confidential Information that constitutes a trade secret under Applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection other than as a result of any act or omission of the Receiving Party.
    2. The Parties agree that the preceding obligations of confidentiality shall not apply with respect to Confidential Information that the Receiving Party can demonstrate by written or other documentary records: (i) was rightfully known by the Receiving Party without restriction; (ii) was or becomes generally known by the public (without breach of this Section 11); (iii) was or is received by the Receiving Party on a non-confidential basis from a Person that was not or is not at the time of such receipt under any obligation to maintain its confidentiality; (iv) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any of the Disclosing Party’s Confidential Information; or (v) was authorized for release and/or disclosure in writing by the Disclosing Party without restriction.
    3. If the Receiving Party is compelled by Applicable Law to disclose any Confidential Information then, to the extent permitted by Applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 11; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 11, the Receiving Party remains required by Applicable Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s outside legal counsel, the Receiving Party is legally required to disclose.
    4. The Receiving Party agrees to immediately notify the Disclosing Party upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information and shall assist the Disclosing Party in regaining such Confidential Information thus mitigating the loss to the Disclosing Party. Upon termination or expiration of this Agreement or at any other time upon the Disclosing Party’s request, the Receiving Party will promptly deliver to the Disclosing Party all documents and materials (including summaries, copies, and excerpts thereof) containing the Disclosing Party’s Confidential Information. Furthermore, both Parties agree not disclose any aspect of this Agreement to any third party other than their respective tax or legal consultants and then only on a need-to-know basis.
    5. Upon termination of this Agreement, all Confidential Information (and all copies thereof) received will be returned to the Disclosing Party or will be destroyed, with written certification thereof being given to the Disclosing Party, provided, however that Tango may retain Subscriber Data as necessary to provide the post-termination access contemplated by Section 10.e. The Parties acknowledge that disclosure of any Confidential Information would cause irreparable injury to the Party whose information is disclosed, which injury may be inadequately compensated in damages. Therefore, either Party will be entitled to injunctive relief against the other’s breach or threatened breach of this Section 11 as well as any other legal remedies that are available, without the need to post a bond.
12. Representations and Warranties.
    
    1. Tango’s Warranties. Tango represents and warrants that the SaaS Services: (i) will operate in material compliance with their Documentation for a period of ninety (90) days from the commencement of the Subscription Period; and (ii) do not and will not violate any Applicable Law when used in accordance with the Documentation.
    2. Subscriber’s Warranties. Subscriber represents and warrants: (i) that Subscriber has or has obtained all consents, authorizations or permissions necessary for Tango to use the Subscriber Data in order to provide Subscriber with the SaaS Services (“Required Consents”); and (ii) the Subscriber Data (a) does not infringe or misappropriate the intellectual property rights of any third party; (b) does not violate Applicable Law; and (c) does not contain any viruses or other computer programming routines that could damage, detrimentally interfere with, surreptitiously intercept or expropriate the SaaS Services.
    3. Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, THE SAAS SERVICES ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF, AND TANGO SPECIFICALLY DISCLAIMS, ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SUBSCRIBER ASSUMES RESPONSIBILITY FOR THE USE OF, AND RESULTS OBTAINED FROM THE SAAS SERVICES. Tango has no responsibility for any decisions made on the basis of the results of the SaaS Services or for the completeness or accuracy of any predictive or analytical results or for their usefulness for Subscriber’s purposes.
13. Indemnification.
    
    1. Indemnification by Tango. Tango will indemnify, defend and hold Subscriber harmless from and against Losses incurred by Subscriber resulting from Actions brought by a Person (other than an Affiliate of Subscriber) that allege (a) Subscriber’s use of the SaaS Services (excluding Subscriber Data and Third-Party Materials) in accordance with this Agreement infringes or misappropriates the intellectual property rights of such third party, provided that Tango will have no obligation to defend, indemnify and hold Subscriber harmless for any Action if: (i) Subscriber or any Authorized User modifies the SaaS Services; (ii) Tango complies with the written designs or specifications supplied by Subscriber; (iii) Subscriber or any Authorized User combines the SaaS Services with any products or services not provided or licensed by Tango; (iv) Subscriber or an Authorized User fails to strictly adhere to Tango’s instructions for the use and maintenance of the SaaS Services; and (b) a breach by Tango of Section 11.
    2. Indemnification by Subscriber. Subscriber will indemnify, defend and hold Tango harmless from and against any and all Actions brought by an Authorized User or any Person that: (i) results from any failure by Subscriber to obtain any Required Consents; (ii) the Subscriber Data infringe or misappropriate the intellectual property rights of such Person; (iii) relate to the use of predictive or analytical results derived from the input of Subscriber Data into the SaaS Service; or (iv) arise from Subscriber’s or Subscriber’s Authorized User’s breach of Section 11. Further, Subscriber shall indemnify, defend, and hold harmless Tango and its Affiliates from and against any and all Losses arising from Subscriber’s failure to pay, withhold, or remit any Taxes for which Subscriber is responsible under this Agreement.
    3. Indemnification Procedure. With respect to the indemnification obligations herein (i) the Party seeking indemnification (the “Indemnified Party”) will promptly notify the Party obligated to provide indemnification (the “Indemnifying Party”) in writing of any such Action (provided that the Indemnifying Party will only be relieved of its obligations if and to the extent that it has been actually prejudiced by the failure to give notice as required); (ii) the Indemnifying Party will have sole control of the defense of any Action and of all negotiations for its settlement provided that any settlement which requires any admission of liability, affirmative obligation or any contribution from the Indemnified Party must be approved in advance in writing by the Indemnified Party; and (iii) the Indemnified Party will cooperate with the Indemnifying Party in a reasonable way and at the Indemnifying Party’s expense. The Indemnified Party may, at its expense and option, use counsel of its choosing in connection with the defense of any such Action.
14. Limitations of Damages and Liability. Except for A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION11 OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (A) neither PARTY will have any liability For consequential, exemplary, INDIRECT, special, OR incidental damages; and (b) The TOTAL AGGREGATE liability of EITHER PARTY for any reason and upon any cause of action brought HEREUNDER, will be limited to the amount paid by Subscriber to Tango for the most recent one (1) year period IMMEDIATELY PRECEDING the date such liability arose. These Limitations WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT AND will apply REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT ANY REMEDY PROVIDED SHOULD FAIL OF ITS ESSENTIAL PURPOSES, OR FOR ANY CLAIM BY ANY THIRD PARTY. The Parties agree that Tango has set the fees and entered into each Order Form in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties.
15. Dispute Resolution. If a Party believes that the other Party is in breach of this Agreement, it will give immediate written notice to the other Party detailing the breach. The Parties will enter into good faith negotiations to reach a reasonable resolution of the complaint for a period of no less than thirty (30) days from the date of receipt of the complaining Party’s written notice prior to instituting litigation or otherwise pursuing any legal remedies. If such negotiations do not reach a resolution, either Party may then resort to whatever remedy is available at law or equity, subject to the limitations on remedy provided for in this Agreement. The dispute resolution procedure set forth in this Section 15 will not operate to prevent a Party from seeking injunctive relief or apply to Subscriber’s failure to make payments when due.
16. Governing Law; Venue; Waiver of Jury Trial. This Agreement will be governed by the laws of the State of Texas without regard to any principle that would require the application of the laws of another jurisdiction. Each Party hereto hereby irrevocably submits to the exclusive jurisdiction of and venue in any federal or state court located in Dallas County, Texas over any dispute arising out of or relating to this Agreement. Each of the Parties agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Applicable Law. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY RISING OUT OF, OR RELATED TO, THIS AGREEMENT.
17. Attorney’s Fees. In the event of any dispute between the Parties concerning the terms and provisions of this Agreement, the Party prevailing in such dispute shall be entitled to collect from the other Party all costs incurred in such dispute, including reasonable attorneys’ fees.
18. Notices. Notices will be given in writing and may be delivered by U.S. mail, overnight delivery service, confirmed e-mail, or personal delivery to the intended recipient of the notice. Notice will be deemed delivered when received or one business day after deposit with an overnight delivery service for next day delivery, whichever is earlier. Notice will be provided to Subscriber at the address provided above (or in an Order Form) and to Tango at 9797 Rombauer Rd. Suite 450, Dallas, TX, 75019 with a copy via email to Legal@TangoAnalytics.com. A Party may change a contact upon written notice to the other Party, which notice will contain the new contact information as set forth above.
19. Remedies Cumulative. Except where specifically provided, termination of this Agreement will be without prejudice to any other rights that either Party may have at law or in equity.
20. Force Majeure. If the performance of any part of this Agreement by a Party is prevented, hindered, delayed or otherwise made commercially unreasonable by reason of any causes beyond the control of the Party, including but not limited to flood or other natural disaster, riot, fire, judicial or governmental action, labor disputes, actions or failures of the hosting or internet service provider or of any telecommunications service providers or facilities in the chain of communication to and from Tango’s server, sabotage or criminal interference with the server or SaaS Services or any other similar or dissimilar event or circumstances (a “Force Majeure Event”), the Party experiencing the Force Majeure Event will be excused from performance. The foregoing will not apply to the obligation to make payments of fees for the Services or related expenses. Each Party agrees to give the other notice as soon as possible of the existence of a Force Majeure Event affecting the Party’s performance.
21. Separate Parties; No Third-Party Beneficiaries. The Parties agree that nothing in this Agreement will be construed to create a partnership, joint venture, franchise, or employee-employer relationship among Tango, Subscriber or any User. Tango will perform the Services as an independent contractor. Neither Tango nor Subscriber is an agent of the other or is authorized to make any representation, contract or commitment on behalf of the other. No person not a party to this Agreement is an intended beneficiary of this Agreement, and no User or any other person not a party to this Agreement will have any right to enforce any term of this Agreement.
22. Waiver; Severability. No waiver of any provision of this Agreement will be valid unless in writing and signed by the Party against whom such waiver is sought to be enforced, nor will failure to enforce any right hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. If any provision of this Agreement cannot be construed in a fashion that is lawful or is otherwise found void, then the Parties agree that the remaining provisions of this Agreement will continue in full force and effect as if said void provision never existed and as long as the removal of such void provision does not alter the intent of the Parties, including the economics of this Agreement.
23. Assignment. Subscriber may not assign Subscriber’s rights and obligations under this Agreement without the prior written permission of Tango. Tango may assign this Agreement in conjunction with a merger, consolidation, reorganization, sale of all or substantially all of its assets or similar transaction by providing Subscriber with written notice of such transaction. This Agreement will be binding on each Party’s permitted successors and assigns.
24. Non-Exclusive; Entire Agreement. The relationship created by this Agreement is non-exclusive in all respects. This Agreement constitutes the entire agreement between Tango and Subscriber with respect to the subject matter hereof and supersede all previous proposals, negotiations and other written or oral communications between the Parties with respect thereto. The Parties anticipate that they may provide or exchange purchase orders, acknowledgments, confirmations, invoices or other documents relating to the subscription to the SaaS Services and or Professional Services, which may contain terms or conditions that are different from, or in addition to, this Agreement. Each Party objects to the inclusion of any different or additional terms by the other Party in any document or communications, which terms will be of no force or effect unless expressly agreed to in writing with reference to this Agreement. To the extent that additional terms and conditions are linked to or are to be incorporated by hyperlink text, reference or otherwise in this Agreement, such terms are incorporated into this Agreement in their entirety by reference.

IN WITNESS WHEREOF, the authorized representatives of the Parties have executed this Agreement as of the Effective Date.