MSA

SOFTWARE-AS-A-SERVICE AGREEMENT

This SOFTWARE-AS-A-SERVICE AGREEMENT (this “Agreement”) is entered into on [DATE] (the “Effective Date”) by and between EMPOWER THE USER, INC. (“ETU”), with an office address located at 100 Summer St. Suite 1600, Boston, MA 02110, and [CUSTOMER ENTITY NAME] (“Customer”), with an office address located at [ADDRESS]. Each of ETU and Customer may be referred to herein as a “Party” and collectively as the “Parties”.

WHEREAS, Customer desires to receive from ETU, and ETU desires to provide to Customer, ETU’s cloud-based learning simulation platform along with certain ancillary services described herein.

NOW, THEREFORE, for good and sufficient consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:

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TERMS AND CONDITIONS

1. Definitions. Capitalized terms used in this Agreement without definition shall have the meanings set forth below:

• "AI Tool” means any artificial intelligence or machine learning algorithm, program, model, or software used by ETU or otherwise incorporated into the Learning Solution.
• "Affiliates" means any person or entity controlling, controlled by, or under common control of, a party to this Agreement.
• “Authorized Users” means Customer’s employees, independent contractors, or any personnel who are authorized by Customer to access and use the Learning Solution.
• "Confidential Information" means all information the Receiving Party accesses or receives from the Disclosing Party pursuant to this Agreement.
• "Confidentiality Period" has the meaning set forth in Section 13.6.
• "Contract Year" means a period of 12 months starting on the Effective Date and each anniversary of that date.
• “Customer Data” means electronic data and information submitted by Customer or its Authorized Users to the Learning Solution, excluding ETU Data.
• “Customer Learning Content” means any content that Customer submits for inclusion in a Learning Module, excluding any ETU Data.
• “Disclosing Party” has the meaning set forth in Section 13.
• “ETU Data” means any and all data and information of ETU that is used or otherwise provided in connection with the Learning Solution.
• "Fees" has the meaning set forth in Section 4.1.
• "Force Majeure Event" has the meaning set forth in Section 14.5.
• "Indemnified Party" and "Indemnifying Party" have the meaning set forth in Section 11.4.
• "Infringement Claim" has the meaning set forth in Section 11.1.
• "Initial Subscription Term" has the meaning set forth in Section 8.2.
• "Intellectual Property Rights” means any and all registered and unregistered rights granted under patent, copyright, trademark, or trade secret laws.
• "Learning Module” means a simulated learning module designed to provide an immersive learning experience.
• “Learning Solution” means ETU’s cloud-based learning platform and the Learning Modules included for such platform.
• "Malicious Code" means any program, code, scripts, agents and files intended to harm.
• “Quote” means a Quote executed by the Parties that specifies the product and services being purchased.
• “Professional Services” means any professional services provided by ETU and purchased by Customer.
• “Receiving Party” has the meaning set forth in Section 13.
• "Renewal Subscription Term" has the meaning set forth in Section 8.2.
• "Statement of Work" or "SOW" means a document executed by the Parties that describes bespoke software or deliverables.
• “Subscription Term” has the meaning set forth in Section 8.2.
• “Subcontractor” means any third party engaged by ETU to perform any part of the services.

2. Right to Access Learning Solution.

2.1 Right to Use. Subject to Customer’s payment of the Fees and compliance with this Agreement, ETU hereby grants to Customer during the Subscription Term a non-exclusive, non-sublicensable, non-transferable right for Customer and its Authorized Users to remotely access and use the Learning Solution solely for Customer’s internal business purposes. ETU reserves the right to update or modify the Learning Solution to maintain or improve performance.

2.2 Restrictions on Use. Customer shall not: (i) reverse engineer the Learning Solution; (ii) modify or prepare derivative works; (iii) copy the Learning Solution; (iv) rent, lease, or sell access; (v) incorporate it into other software; (vi) remove proprietary notices; (vii) use it for benchmarking or competitive analysis; (viii) bypass security; (ix) use it in an abusive manner; (x) represent ownership; or (xi) access it except as expressly permitted.

2.3 Limitation on Number of Users and Modules. Access is limited to the number of Authorized Users and Learning Modules specified in the applicable Quote.

2.4 Protection of Credentials. Customer is responsible for all activities arising from the use of issued credentials and must notify ETU immediately of any security compromise.

2.5 End User Terms. Customer may bind Authorized Users to its own terms, but this Agreement prevails in the event of conflict.

2.6 Subcontractors. ETU may subcontract parts of the Learning Solution but remains fully responsible for the performance and acts of its Subcontractors.

3. Intellectual Property Ownership.

3.1 Learning Solution. ETU is the sole owner of the Learning Solution and all related Intellectual Property Rights.

3.2 Ownership of Learning Modules. ETU owns all right, title, and interest in and to the Learning Modules (whether created independently or jointly). Customer retains ownership of Customer Learning Content contained within such modules.

3.3 AI Improvements and Data. Use of AI Tools is governed by the AI Addendum (Exhibit C).

3.4 Use of Feedback. ETU may use any suggestions or comments provided by Customer without approval or compensation.

3.5 Reservation of Rights. ETU reserves all rights not expressly granted.

4. Fees.

4.1 Fees. Customer shall pay the fees set forth in each Quote without offset or deduction.

4.2 Invoicing. ETU shall invoice subscription Fees annually in advance. Payment is due within fifteen (15) days of the invoice date unless otherwise specified.

4.3 Late Payments. ETU may charge interest at 1.5% per month on past due amounts and may suspend access to the Learning Solution for non-payment.

4.4 Taxes. Fees are exclusive of taxes; Customer is responsible for all applicable sales, use, and service taxes.

5. Simulation Development Services. ETU shall perform development or data analytics services in accordance with the requirements set forth in the applicable Quote.

6. Bespoke Software and Services. Specifics for bespoke work will be outlined in a Statement of Work (SOW). All IP in such work remains with ETU unless otherwise agreed in writing.

7. Customer Support. ETU will provide standard support via email or support desk during business hours.

8. Term and Termination.

8.1 Term of Agreement. Commences on the Effective Date and continues until all Quotes expire or the Agreement is terminated.

8.2 Term of Quote. Quotes automatically renew for one-year periods unless notice of non-renewal is given thirty (30) days prior to the end of the term.

8.3 Termination. Either party may terminate for uncured material breach (30-day cure period). ETU may terminate immediately if Customer commences legal proceedings against ETU.

8.4 Suspension. ETU may suspend access if it believes the Agreement is being violated or to avoid material harm.

8.5 Termination Fees. If terminated (except for ETU's breach), Customer must pay unpaid fees for the remainder of the term.

8.6 Effect of Termination. Customer must cease use of the Learning Solution; ETU will delete Customer Data within sixty (60) days.

9. Warranties.

9.1 Mutual Warranties. Each party warrants its legal standing and authority to enter into this Agreement.

9.2 ETU Warranties. ETU warrants performance with reasonable care and skill. Remedies for breach are limited to correction of services or a pro-rata refund.

9.3 Customer Warranties. Customer warrants ownership of Customer Data and that such data does not infringe on third-party rights.

9.4 DISCLAIMER. EXCEPT AS STATED, THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

10. Customer Data, Customer Learning Content, and Data Security.

10.1 Ownership. Customer owns Customer Data. Customer grants ETU a license to use such data to provide services and to improve the platform (as per the AI Addendum).

10.2 ETU Data. ETU remains the sole owner of ETU Data.

10.3 Accuracy. Customer is responsible for the accuracy and backup of Customer Data.

10.4 Security. ETU will maintain reasonable safeguards for data protection.

10.5 Hosting. ETU may use third-party hosting providers at its discretion.

10.6 Restricted Data. Customer shall not provide sensitive data (e.g., HIPAA, Social Security numbers, payment card info) to ETU.

10.7 Data Processing Agreement. The DPA (Exhibit B) applies to the processing of personal data.

11. Indemnification.

11.1 By ETU. ETU will defend Customer against Infringement Claims regarding the Learning Solution, subject to specific exclusions (e.g., modifications by Customer).

11.2 IP Remedies. ETU may procure rights, modify the solution, or terminate the Agreement if an Infringement Claim arises.

11.3 By Customer. Customer shall indemnify ETU against claims relating to Customer Data or breach of this Agreement.

11.4 Procedures. The Indemnified Party must promptly notify the Indemnifying Party and cooperate in the defense.

12. Limitation of Liability.

12.1 Types of Damages. Neither party is liable for lost profits, lost data, or indirect/consequential damages.

12.2 Amount of Damages. Total liability is limited to the Fees paid by Customer to ETU in the Contract Year in which the claim arose.

13. Confidential Information.

13.1 Obligations. The Receiving Party must maintain strict confidentiality and only disclose info on a "need-to-know" basis.

13.2 Exclusions. Does not apply to info that is public, independently developed, or received from a third party without restriction.

13.3 Residual Knowledge. ETU may use general skills and know-how gained during performance.

13.4 Legal Disclosure. Disclosure is permitted if required by law, provided notice is given to the Disclosing Party.

13.5 Return or Destruction. Upon termination, parties must return or destroy Confidential Information.

13.6 Confidentiality Period. Obligations last for the term plus three (3) years (or longer for trade secrets).

14. Miscellaneous.

14.1 Survival. Sections 1, 3, 10.1, 10.2, 10.7, 11, 12, 13, and 14 survive termination.

14.2 Independent Contractors. No agency or partnership is created.

14.3 Notices. Must be in writing and delivered to the addresses specified.

14.4 Complete Agreement. This document supersedes all prior agreements.

14.5 Force Majeure. Neither party is liable for delays caused by events beyond their control (e.g., acts of God, pandemics).

14.6 Marketing. ETU may use Customer’s logo on its website for marketing purposes.

14.7 Governing Law. Governed by the laws of the State of Massachusetts; venue in Boston, MA.

14.8 No Assignment. Customer may not assign this Agreement without ETU’s consent.

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Exhibit A – Quote

Exhibit B – Data Processing Agreement

Exhibit C – AI Addendum