Software as a Service (SaaS) User Agreement (“Agreement”)

 
This Software as a Service (SaaS) User Agreement (“Agreement”) governs access to and use of MentisSoft’s products and services, including but not limited to FINACS and FundThrive (collectively, the “Product” or “Services”). This Agreement is between MentisSoft Inc., including its Affiliates (“MentisSoft,” “we,” “us,” or “our”) and the entity or individual accepting it (“Customer,” “you”). By executing an Order (defined below) or accessing the Product, you agree to this Agreement and represent that you have authority to bind Customer. This Agreement also applies to all Orders and Statements of Work entered into under it.

DEFINITIONS

  1. “Affiliate” means an entity that controls, is controlled by, or is under common control with a party (“control” meaning ownership of greater than 50% of voting interests).
  2. “Authorized User” means an individual (employee, officer, administrator, contractor acting under your direction, or where applicable student, guardian, or donor stakeholder) whom Customer authorizes to access the Services and for whom access credentials have been supplied. Each Authorized User is a named user; credentials may not be shared, but may be reassigned to a new individual replacing a prior Authorized User.
  3. “Confidential Information” has the meaning in Section 10.
  4. “Customer Data” means data (including Personal Data) that Customer or its Authorized Users input into the Services, excluding Usage Data and Aggregated Data.
  5. “Documentation” means the then-current user guides, technical specifications, training materials, and usage policies for the Product made available by MentisSoft.
  6. “Effective Date” means the starting date specified on the initial Order Form that first references this agreement.
  7. “Order” means an ordering document (including online enrollment, quotation, or order form) executed by the parties that specifies the Product (modules, features, user or usage quantities, subscription term, fees) and incorporates this Agreement.
  8. “Personal Data” means any information relating to an identified or identifiable natural person included within Customer Data.
  9. “Subscription Term” means the initial and any renewal term for a subscription set forth in an Order.
  10. “Usage Data” means telemetry, log, and usage pattern data generated by the operation and use of the Services. “Aggregated Data” means data derived from Customer Data and/or Usage Data that is de-identified and aggregated so it cannot reasonably identify Customer or any natural person.
  11. “Product” / “Services” means the hosted software-as-a-service platform, applications (including FINACS and FundThrive), interfaces, websites, integrations, and related technologies provided by MentisSoft, and any on-premise components or tools provided solely to enable use of the hosted service.
  12. “Statement of Work” or “SOW” means a document executed by the parties describing Professional Services (implementation, training, configuration) referencing this Agreement.
  13. “Professional Services” means implementation, training, configuration, consulting or similar services provided under a SOW (distinct from core subscription access).
  14. “Acceptable Use Policy” (“AUP”) means usage requirements in Section 3.4 (and any updated version noticed to Customer) governing proper use of the Services.
  15. “Support Hours” means MentisSoft’s then-current support hours, excluding company-observed holidays.

  1. LICENSE & ACCESS
    • Grant.  Subject to this Agreement and timely payment of fees, MentisSoft grants Customer a non-exclusive, non-transferable (except per Section 14.5) right during the Subscription Term to access and use the Product specified in the applicable Order solely for Customer’s internal business operations in the education / advancement context. Product is licensed (or access rights granted) to use and not sold.
    • Scope & Limits. Use is limited to the quantities (e.g., Authorized Users, products, student records, transactions, modules) stated in the Order. MentisSoft may monitor usage to verify compliance with quantitative limits. Customer will not deliberately evade any technical restrictions.
    • Affiliates. Customer may permit use by its Affiliates solely for Customer’s internal business; Customer remains liable for Affiliate use. Affiliates may sign separate Orders referencing this Agreement (each deemed a “Customer” for its Order).
    • Reservation. Except for the rights expressly granted hereunder, all rights, title, and interest in and to the Product, Documentation, Usage Data, Aggregated Data, and MentisSoft IP remain with MentisSoft and its licensors. There are no implied rights.
    • Restrictions. Except as expressly permitted hereunder, Customer shall not (and shall not permit a third party to): (a) copy, frame, mirror, modify, create derivative works of, reverse engineer, decompile, disassemble or attempt to derive source code (except to the limited extent restrictions are prohibited by law); (b) sublicense, distribute, rent, lease, lend, sell, resell, outsource, timeshare or provide the Product as a service bureau; (c) remove or alter proprietary notices; (d) bypass or disable security or usage technical limits; (e) access the Product to build a competitive product or perform benchmarking for publication without prior written consent; (f) store or transmit Malicious Code; or (g) use the Product in violation of the AUP or any applicable law.
    • Evaluation / Beta. Any evaluation, beta, pilot, or non-production feature (collectively “Beta Features”) is provided AS IS, may be modified or discontinued at any time, is excluded from warranties and SLAs, and may be subject to additional parameters.
    • Feedback. Feedback is voluntary. Customer grants MentisSoft a perpetual, irrevocable, worldwide, royalty-free license to use, adapt, and incorporate Feedback in Products/Services without any obligations; Customer waives moral rights therein to the extent permitted by law.

  1. FEES & PAYMENT
    • Fees. Fees are set forth in each Order. Except as expressly stated, all fees are non-cancellable and non-refundable.
    • Invoicing & Payment. Unless the Order states otherwise, fees are invoiced annually in advance and payable net thirty (30) days from invoice date. Late amounts may accrue interest at 1.5% per month or the maximum legal rate, whichever is lower. Customer will reimburse reasonable collection costs (including attorneys’ fees) for undisputed overdue amounts.
    • Add-Ons / True-Up. Mid-term increases (additional Authorized Users, modules, student tiers) are prorated to the then-current Subscription Term end. Decreases take effect only upon renewal.
    • Taxes. Fees exclude any applicable taxes. Customer is responsible for all sales, use, VAT, GST, withholding or similar taxes (excluding taxes on MentisSoft’s net income). If withholding applies, Customer will gross-up payments so that MentisSoft receives full invoiced amount.
    • Suspension for Non-Payment. MentisSoft may (after 10 days written notice for undisputed overdue fees) suspend access until payment is received. All applicable fees will continue to accrue.

  1. CUSTOMER RESPONSIBILITIES & ACCEPTABLE USE
    • Credentials & Security. Customer controls and is responsible for Authorized User access and maintaining credential confidentiality. Customer will promptly notify MentisSoft of any suspected unauthorized access without undue delay.
    • Configuration & Cooperation. Customer will provide timely information, cooperation, and resources reasonably necessary for Product operation and any Professional Services.
    • Compliance. Customer is responsible for ensuring its use (and that of Authorized Users) complies with applicable laws (including student data, fundraising, export, anti-corruption) and obtaining any required consents.
    • Acceptable Use Policy (AUP). Customer shall not and shall not allow any Authorized User to: (a) send spam or duplicative unsolicited messages; (b) upload or store payment card primary account numbers, unmasked social security numbers, or personal health information unless explicitly permitted in Documentation; (c) interfere with or disrupt integrity or performance of the Services; (d) perform penetration testing or vulnerability scanning without prior written consent; (e) introduce viruses, malware, or harmful code; (f) use the Services to infringe or misappropriate third-party IP; (g) harass, threaten, or violate privacy rights; or (h) exceed purchased usage metrics. MentisSoft may suspend access (limited to affected portion) for AUP violations after notice (unless immediate suspension is reasonably required to prevent harm).
    • The Customer is solely responsible for determining the amounts charged to its end users, including any surcharges or administrative fees. MentisSoft does not control or assume any liability for such charges. Any disputes arising between the Customer and its end users regarding such surcharges shall be resolved solely between those parties.

  1. DATA; SECURITY; PRIVACY
    • Roles. The parties acknowledge the Services process Customer Data (including Personal Data, if any). To the extent MentisSoft processes Personal Data on behalf of Customer, Customer is the Controller (or equivalent) and MentisSoft is the Processor (or school “service provider” / “school official” with legitimate educational interest, where applicable).
    • Data Processing Addendum. If required by law (e.g., GDPR, CPRA) and if applicable, the parties will enter a Data Processing Addendum (“DPA”). If a DPA exists, it prevails over this Section in case of conflict.
    • Security Program. MentisSoft will maintain commercially reasonable administrative, technical, and physical safeguards designed to protect the confidentiality, integrity, and availability of Customer Data and guard against unauthorized access or disclosure.
    • Security Incidents. MentisSoft will notify Customer without undue delay (and in any event consistent with applicable law) after confirming a Security Incident resulting in unauthorized access to Customer Data, and will provide updates and reasonable cooperation.
    • Usage & Aggregated Data. MentisSoft may generate and use Usage Data and Aggregated Data for analytics, benchmarking, enhancing and improving Services, and developing new offerings, provided it does not identify Customer or any natural person.
    • Usage & Aggregated Data. MentisSoft may generate and use Usage Data and Aggregated Data for analytics, benchmarking, enhancing and improving Services, and developing new offerings, provided it does not identify Customer or any natural person.
    • Sensitive Data Disclaimer. Unless expressly permitted in Documentation, the Services are not intended for storage of PCI cardholder data (outside tokenized payment fields), personal health information, or government-issued identification numbers. The Customer is responsible for limiting such data.

  1. AVAILABILITY; SUPPORT; PROFESSIONAL SERVICES
    • Availability. MentisSoft will use commercially reasonable efforts to make the hosted Services available 24×7, excluding: (a) planned maintenance (with reasonable prior notice); (b) emergency maintenance; and (c) Force Majeure.
    • Support. MentisSoft will provide standard email support to Customer’s designated contacts during Support Hours. Enhanced support may be purchased per an Order.
    • Changes. MentisSoft may improve or modify the Product. It will not materially reduce core functionality of paid features during a current Subscription Term. Beta Features may change at any time.
    • Professional Services. Any Professional Services will be described in a SOW and performed in a professional and workmanlike manner consistent with industry standards. Customer will provide reasonable cooperation and timely decisions.

  1. INTELLECTUAL PROPERTY & OWNERSHIP
    • MentisSoft IP. MentisSoft retains all IP rights in the Product, Documentation, Usage Data, and Aggregated Data. There is no transfer of ownership.
    • Customer Data. As between the parties, Customer owns all rights in Customer Data. Customer grants MentisSoft a non-exclusive, worldwide, royalty-free license to host, use, copy, transmit, display, and process Customer Data to provide and improve the Services, and as otherwise permitted under this Agreement.
    • Third-Party Services. Integrations or third-party applications (“Third-Party Services”) accessed through the Product are subject to third-party terms; MentisSoft disclaims responsibility for Third-Party Services and any data handling by them. Customer authorizes MentisSoft to share Customer Data with Third-Party Services as enabled by Customer or its Authorized Users.

  1. CONFIDENTIALITY
    • Definition. “Confidential Information” means non-public information disclosed by a party (“Discloser”) to the other (“Recipient”) that is designated confidential or that a reasonable person would understand to be confidential (including code, product plans, security practices, student, donor or financial records, pricing, and business strategies). Exclusions to the Confidential Information: information that (a) becomes public through no breach; (b) was known without obligation before disclosure; (c) is received from a third party without restriction; (d) is independently developed without use of Confidential Information; or (e) is approved in writing for release by the Discloser.
    • Obligations. Recipient will use the same care it uses to protect its own similar information (with no less than reasonable care) and may use Confidential Information only to perform its obligations under this Agreement. Recipient may disclose Confidential Information to its Affiliates, employees, and service providers who are under written confidentiality obligations.
    • Obligations. Recipient will use the same care it uses to protect its own similar information (with no less than reasonable care) and may use Confidential Information only to perform its obligations under this Agreement. Recipient may disclose Confidential Information to its Affiliates, employees, and service providers who are under written confidentiality obligations.
    • Injunctive Relief. Breach of this Section 7 may cause irreparable harm, and the non-breaching party is entitled to seek equitable relief in addition to other remedies.
    • Survival. Confidentiality obligations hereunder will survive for three (3) years from disclosure. However, trade secrets, proprietary information and Customer Data confidentiality obligations will survive so long as such information remains confidential.

  1. WARRANTIES; DISCLAIMERS
    • Authority. Each party represents it has validly entered this Agreement.
    • Service Warranty. MentisSoft warrants the Services will materially conform to the Documentation during the Subscription Term.
    • Professional Services Warranty. MentisSoft warrants Professional Services will be performed in a professional and workmanlike manner consistent with industry standards.
    • Remedies.  MentisSoft will use commercially reasonable efforts to correct the non-conformance in the Professional Services. If MentisSoft cannot remedy materially within a reasonable time, Customer may terminate the affected Order or SOW and receive a pro-rata refund of prepaid, unused fees for the non-conforming portion. THIS SECTION SETS FORTH CUSTOMER’S EXCLUSIVE REMEDIES AND MENTISSOFT’S SOLE LIABILITY FOR BREACH OF THE WARRANTIES IN SECTIONS 8.2 – 8.3.
    • Exclusions. Warranties do not apply to: (a) Beta Features; (b) issues caused by Customer’s misuse, unauthorized modifications, or combination with non-MentisSoft items; (c) failures of the internet or third-party systems; (d) use not in accordance with Documentation or this Agreement.
    • Remedies.  MentisSoft will use commercially reasonable efforts to correct the non-conformance in the Professional Services. If MentisSoft cannot remedy materially within a reasonable time, Customer may terminate the affected Order or SOW and receive a pro-rata refund of prepaid, unused fees for the non-conforming portion. THIS SECTION SETS FORTH CUSTOMER’S EXCLUSIVE REMEDIES AND MENTISSOFT’S SOLE LIABILITY FOR BREACH OF THE WARRANTIES IN SECTIONS 8.2 – 8.3.

  1. INDEMNIFICATION
    • MentisSoft Indemnity. MentisSoft will defend and indemnify Customer against third-party claims alleging that the Services, as provided, infringe a U.S. patent, copyright, or trade secret.
    • Exclusions. MentisSoft has no obligation for claims arising from: (a) combination with items not provided by MentisSoft; (b) use of older versions when a non-infringing current version was offered; (c) Customer Data or third-party content; (d) use outside the scope or in violation of this Agreement.
    • Exclusions. MentisSoft has no obligation for claims arising from: (a) combination with items not provided by MentisSoft; (b) use of older versions when a non-infringing current version was offered; (c) Customer Data or third-party content; (d) use outside the scope or in violation of this Agreement.
    • Exclusions. MentisSoft has no obligation for claims arising from: (a) combination with items not provided by MentisSoft; (b) use of older versions when a non-infringing current version was offered; (c) Customer Data or third-party content; (d) use outside the scope or in violation of this Agreement.
    • Procedure. The defending party’s obligations are conditioned on: (i) prompt notice (delay only relieving obligations to the extent prejudicial); (ii) sole control of defense and settlement (not unreasonably withheld); and (iii) cooperation at the indemnified party’s expense.
    • Exclusive. This Section sets forth each party’s sole liability and exclusive remedy for third-party IP infringement claims.

  1. LIMITATION OF LIABILITY
    • Exclusion of Certain Damages. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR LOST PROFITS, REVENUES, BUSINESS, GOODWILL, OR DATA LOSS, EVEN IF ADVISED OF THE POSSIBILITY AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
    • Cap.  MENTISSOFT’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
    • Carve-Outs. The cap in Section 10.2 does not apply to: (a) Customer’s payment obligations; (b) a party’s indemnification obligations under Section 9; (c) Customer’s breach of Section 1.5 (Restrictions) or 7 (Confidentiality); or (d) a party’s willful misconduct.
    • Data Responsibility. MentisSoft is not liable for loss or inaccuracy of Customer Data except to the limited extent caused by MentisSoft’s breach of Section 4.3 (Security Program).
    • Surcharges and Third-Party Fees. The Customer acknowledges and agrees that MentisSoft is not responsible or liable for any additional charges, surcharges, or fees imposed by the Customer on third parties, including but not limited to parents, guardians, or students. Any decision by the Customer to apply such surcharges or modify invoice amounts is made at the Customer’s sole discretion and risk. MentisSoft shall bear no responsibility for disputes, claims, losses, or damages arising from or related to such surcharges or billing practices.

  1. TERM & TERMINATION
    • Term of Agreement. This Agreement starts on the Effective Date and continues until all Subscription Terms have expired or this Agreement is terminated as permitted herein.
    • Subscription Term; Auto-Renewal. Each Subscription Term is defined in the Order. Unless either party provides written non-renewal notice at least thirty (30) days before the end of the then-current Subscription Term, subscriptions automatically renew for successive one-year renewal terms at then-effective current standard pricing.
    • Termination for Cause. Either party may terminate this Agreement or an affected Order (a) for uncured material breach upon thirty (30) days’ written notice specifying the breach (ten (10) days for undisputed payment breaches), or (b) if the other party becomes insolvent, enters bankruptcy, or similar proceedings not dismissed within sixty (60) days.
    • Suspension. MentisSoft may suspend (without terminating) access immediately if: (a) undisputed overdue fees remain unpaid ten (10) days after notice; (b) Customer’s use poses a security risk or could harm the Product or others; (c) AUP violations after notice; or (d) required by law or governmental order. Suspension will be as narrow as reasonably practicable.
    • Effect of Termination. Upon termination (other than Customer termination for MentisSoft uncured material breach) fees are non-refundable, and outstanding invoices are immediately due. All rights to use the Product cease (except during the Retrieval Period for exports). Sections intended to survive (including 1.4-1.7, 2, 3.4, 4.5-4.7, 5.3-5.4, 6–10, 11.5, 12-14) survive.

  1. PUBLICITY
    • MentisSoft may list Customer name and logo in its customer lists, website, and standard marketing materials, and may issue a general announcement of the Customer relationship, provided no confidential student-level data is disclosed. Customer may opt-out of further use (other than already printed or cached materials) by written notice.

  1. COMPLIANCE; EXPORT; GOVERNMENT USE
    • Export. Customer represents it is not on any U.S. government denied-party list and will not export or re-export the Product in violation of applicable export control or sanctions laws.
    • Anti-Corruption. Neither party will violate applicable anti-corruption or anti-bribery laws in connection with this Agreement.
    • Government Use. The Product and Documentation are “Commercial Computer Software” and “Commercial Computer Software Documentation” provided with only those rights set forth herein as defined in FAR 2.101, 12.212 and DFARS 227.7202.

  1. MISCELLANEOUS
    • Entire Agreement; Order of Precedence. This Agreement (and any DPA, AUP, Orders, and SOWs) constitutes the entire agreement between the parties. In case of conflict, the following order will prevail: (1) DPA (for data processing terms), (2) Order, (3) SOW, (4) this Agreement, (5) Documentation / policies. All prior agreements are superseded.
    • Amendments. Amendments must be in writing and executed by both parties, except MentisSoft may update the AUP or security practices with notice, provided updates do not materially reduce protections or functionality during the then-current Subscription Term.
    • Independent Contractors. Parties are independent contractors; no agency, partnership, or joint venture is created.
    • Severability; Waiver. If any provision is unenforceable, the remainder of the provisions remains in effect. Waivers must be in writing and are not continuing waivers.
    • Assignment. Customer may not assign this Agreement without MentisSoft’s prior written consent, except it may assign (with written notice) to an Affiliate or in connection with a merger, reorganization, sale of all or substantially all assets, or change of control, provided the assignee is not a direct competitor and assumes all obligations. Any prohibited assignment is void. MentisSoft may assign its rights and obligations under this Agreement without the consent of Customer.
    • Force Majeure. Neither party is liable for delay or failure due to events beyond reasonable control (including natural disasters, acts of war, terrorism, labor actions, government actions, internet or utility failures) provided it uses reasonable efforts to mitigate and resumes performance promptly. Payment obligations are not excused.
    • Notices. Notices (other than routine operational communications) must be in writing and sent to the addresses (or emails) in the Order and deemed given when: (a) delivered by hand (upon receipt), (b) sent by reputable overnight courier (next business day after confirmed dispatch), or (c) emailed to contactus@mentissoft.com, and to Customer at Customer’s notice address) with subject “Legal Notice” and receipt confirmation (not automated).
    • No Third-Party Beneficiaries. No person other than the parties has rights under this Agreement.
    • Governing Law; Venue. This Agreement is governed by the laws of the State of New Jersey, excluding its conflicts rules. The parties submit to exclusive jurisdiction of state and federal courts located in New Jersey for disputes (and waive objections to venue/personal jurisdiction).
    • Counterparts; Electronic Signatures. Execution may be in counterparts (including electronic and PDF). All counterparts together form one agreement.