Enterprise SaaS Agreement — Hawaii

ENTERPRISE SOFTWARE AS A SERVICE AGREEMENT

State of Hawaii

Agreement No.: [________________________________]

TABLE OF CONTENTS

1. Parties and Recitals
2. Definitions
3. Access Rights and License Grant
4. Service Levels and Availability
5. Implementation and Onboarding
6. Customer Obligations
7. Fees and Payment
8. Data Protection and Security
9. Intellectual Property and Feedback
10. Confidentiality
11. Representations and Warranties
12. Indemnification
13. Limitation of Liability
14. Term and Termination
15. Governing Law and Dispute Resolution
16. General Provisions
17. Signatures
18. Exhibit A — Order Form
19. Exhibit B — SLA Summary

1. PARTIES AND RECITALS

This Enterprise Software as a Service Agreement ("Agreement") is entered into as of [__/__/____] (the "Effective Date") by and between:

Provider:
Name: [________________________________]
Address: [________________________________]
State of Organization: [________________________________]
Contact: [________________________________]
Email: [________________________________]

Customer:
Name: [________________________________]
Address: [________________________________]
State of Organization: [________________________________]
Contact: [________________________________]
Email: [________________________________]

RECITALS

WHEREAS, Provider has developed and operates a proprietary cloud-based software platform described in the applicable Order Form (the "SaaS Services");

WHEREAS, Customer desires to subscribe to and access the SaaS Services for its internal business operations pursuant to the terms and conditions set forth herein;

WHEREAS, the Parties intend this Agreement to comply with applicable Hawaii law, including without limitation the Hawaii Security Breach of Personal Information Act (HRS § 487N-1 et seq.), Hawaii Unfair and Deceptive Acts or Practices law (HRS § 480-2 et seq.), and the Hawaii Uniform Electronic Transactions Act (HRS Ch. 489E);

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

2. DEFINITIONS

As used in this Agreement, the following terms shall have the meanings set forth below:

2.1 "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where "control" means ownership of fifty percent (50%) or more of the voting securities.

2.2 "Authorized Users" means the employees, contractors, and agents of Customer and its Affiliates authorized to access the SaaS Services, subject to user limits in the Order Form.

2.3 "Confidential Information" means all non-public information disclosed by one Party to the other that is designated as confidential or reasonably understood to be confidential.

2.4 "Customer Data" means all electronic data, information, content, and materials submitted by or on behalf of Customer or its Authorized Users to the SaaS Services, including Personal Information.

2.5 "Documentation" means Provider's then-current user manuals, specifications, and written materials describing the SaaS Services.

2.6 "Effective Date" means the date first written above.

2.7 "Fees" means subscription fees, usage fees, professional services fees, and other charges specified in the Order Form.

2.8 "Intellectual Property Rights" means all patent, copyright, trademark, trade secret (as defined under HRS § 482B-2 and 18 U.S.C. § 1836), database, moral, and other intellectual property rights worldwide.

2.9 "Malicious Code" means any virus, worm, Trojan horse, ransomware, or other harmful code designed to damage or expropriate systems or data.

2.10 "Order Form" means each ordering document referencing this Agreement that specifies the SaaS Services, Subscription Term, Fees, and other commercial terms.

2.11 "Personal Information" has the meaning set forth in HRS § 487N-1 and includes an individual's first name or first initial and last name in combination with any one or more data elements such as Social Security number, driver's license number, or financial account information, when such data elements are not encrypted or redacted.

2.12 "Professional Services" means implementation, configuration, training, or consulting services provided under a Statement of Work or Order Form.

2.13 "SaaS Services" means the cloud-based software application(s) identified in the Order Form, made available by Provider via the internet on a subscription basis.

2.14 "Security Breach" has the meaning set forth in HRS § 487N-1 and means unauthorized access to and acquisition of unencrypted records containing Personal Information where illegal use has occurred, is reasonably likely to occur, or creates a risk of harm to a person.

2.15 "Service Level Agreement" or "SLA" means the service level commitments in Exhibit B and any applicable Order Form.

2.16 "Subscription Term" means the initial term and any renewal terms during which Customer may access the SaaS Services.

2.17 "Updates" means bug fixes, patches, and minor enhancements made generally available at no additional charge.

2.18 "Upgrades" means new versions or major feature enhancements that may be available at additional charge.

2.19 "Usage Data" means aggregated and de-identified data relating to Customer's use of the SaaS Services that does not identify Customer or any individual.

2.20 "Acceptable Use Policy" or "AUP" means Provider's then-current acceptable use policy.

3. ACCESS RIGHTS AND LICENSE GRANT

3.1 Grant of Access Rights. Subject to compliance with this Agreement and payment of Fees, Provider grants Customer a non-exclusive, non-transferable, non-sublicensable right during the Subscription Term to access and use the SaaS Services solely for Customer's internal business operations.

3.2 License Type. Select the applicable license model:

☐ Per-User License — access limited to [____] named Authorized Users
☐ Per-Seat License — access limited to [____] concurrent users
☐ Enterprise-Wide License — unlimited users within Customer's organization
☐ Usage-Based License — metered by [________________________________]
☐ Tiered License — per Order Form

3.3 Usage Restrictions. Customer shall not, and shall not permit any third party to:

(a) Copy, modify, adapt, or create derivative works of the SaaS Services;

(b) Reverse engineer, disassemble, or decompile the SaaS Services except as permitted by applicable law;

(c) Sublicense, lease, rent, distribute, sell, or transfer the SaaS Services;

(d) Remove or alter any proprietary notices;

(e) Use the SaaS Services for competitive benchmarking without Provider's consent;

(f) Use the SaaS Services in violation of any applicable law, including HRS § 480-2 (unfair or deceptive acts or practices);

(g) Transmit Malicious Code or unlawful content;

(h) Interfere with or burden the SaaS Services; or

(i) Access the SaaS Services beyond the authorized scope.

3.4 Reservation of Rights. Provider reserves all rights not expressly granted herein.

4. SERVICE LEVELS AND AVAILABILITY

4.1 Uptime Commitment. Provider shall maintain availability of the SaaS Services at least [____]% during each calendar month (the "Uptime Commitment"), measured per Exhibit B.

4.2 Service Credits.

4.3 Credit Request. Customer must submit a written credit request within thirty (30) days of the end of the affected month.

4.4 Exclusions. The Uptime Commitment excludes downtime from: (a) scheduled maintenance with [____] hours' advance notice; (b) force majeure events; (c) Customer's equipment or network; (d) Customer's breach; (e) third-party services; or (f) emergency security maintenance.

4.5 Measurement. Availability = (Total Minutes - Downtime Minutes) / Total Minutes x 100.

4.6 Chronic Failure. If the SaaS Services fail to achieve [____]% uptime for three (3) consecutive months, Customer may terminate upon thirty (30) days' notice and receive a pro-rata refund.

5. IMPLEMENTATION AND ONBOARDING

5.1 Implementation Plan. Provider shall deliver an implementation plan within [____] business days of the Effective Date.

5.2 Configuration. Provider shall configure the SaaS Services per the Order Form or Statement of Work.

5.3 Data Migration. If included, Provider shall migrate Customer data per the agreed plan.

5.4 Training. Provider shall provide [____] hours of training as specified in the Order Form.

5.5 Acceptance Testing. Customer shall have [____] business days for acceptance testing. Provider shall cure material deficiencies within [____] business days.

6. CUSTOMER OBLIGATIONS

6.1 Account Management. Customer shall provide accurate registration information, maintain credential security, promptly report unauthorized access, and designate at least one administrator.

6.2 Compliance. Customer shall use the SaaS Services in compliance with all applicable Hawaii and federal laws, this Agreement, and the AUP.

6.3 Cooperation. Customer shall provide reasonable cooperation and timely responses.

6.4 Customer Systems. Customer is responsible for its own network, hardware, and software.

6.5 Content Responsibility. Customer is responsible for the accuracy, legality, and appropriateness of Customer Data.

7. FEES AND PAYMENT

7.1 Fees. Customer shall pay the Fees set forth in the applicable Order Form.

7.2 Invoicing. Provider shall invoice per the Order Form:

☐ Annually in advance
☐ Quarterly in advance
☐ Monthly in advance
☐ Monthly in arrears (usage-based)

7.3 Payment Terms. Invoices are due within [____] days of the invoice date.

7.4 Late Payments. Overdue amounts shall bear interest at the lesser of: (a) one percent (1.0%) per month; or (b) ten percent (10%) per annum, which is the maximum rate permitted under HRS § 478-2 for obligations where no different rate is expressly agreed. The Parties acknowledge that under HRS § 478-2, the legal rate of interest is ten percent (10%) per annum when there is no express written contract fixing a different rate.

7.5 Hawaii General Excise Tax. All Fees are exclusive of Hawaii general excise tax ("GET"). Customer shall pay all applicable GET at the current rate (4.0% for most transactions, 4.5% for Honolulu) and any other applicable taxes, except taxes on Provider's net income.

7.6 Fee Increases. Provider may increase Fees for renewal terms with at least [____] days' notice. Increases shall not exceed [____]% per year.

7.7 Disputed Invoices. Customer may dispute invoices in good faith with written notice and supporting detail within [____] days.

7.8 Suspension for Non-Payment. Provider may suspend access after [____] days' written notice of non-payment of undisputed amounts.

8. DATA PROTECTION AND SECURITY

8.1 Hawaii Data Breach Notification. Provider shall comply with the Hawaii Security Breach of Personal Information Act (HRS § 487N-1 et seq.), including:

(a) Notification to Customer. Provider shall notify Customer without unreasonable delay and in no event later than [____] hours after becoming aware of a Security Breach affecting Customer Data containing Personal Information of Hawaii residents;

(b) Notification to Individuals. As required by HRS § 487N-2, notification shall be provided to affected Hawaii residents without unreasonable delay, consistent with the legitimate needs of law enforcement and any measures necessary to determine the scope of the breach;

(c) Notification to Hawaii Office of Consumer Protection. If the breach affects more than one thousand (1,000) Hawaii residents, Provider shall cooperate with Customer in providing notice to the Hawaii Office of Consumer Protection as required by HRS § 487N-2(f);

(d) Content of Notice. Notice shall include: (i) a description of the incident; (ii) the type of Personal Information involved; (iii) the steps taken to protect affected individuals; (iv) a telephone number for further information; and (v) contact information for the reporting entity;

(e) Investigation and Mitigation. Provider shall investigate the breach, take steps to mitigate harm, and cooperate with Customer in remediation and notifications; and

(f) Penalties. The Parties acknowledge that violations of HRS § 487N-2 may result in penalties of up to $2,500 per violation, enforceable by the Hawaii Attorney General or Executive Director of the Office of Consumer Protection per HRS § 487N-3.

8.2 Security Measures. Provider shall implement and maintain administrative, physical, and technical safeguards including:

(a) Encryption in transit (TLS 1.2+) and at rest (AES-256);

(b) Role-based access controls with multi-factor authentication;

(c) Regular vulnerability assessments and penetration testing;

(d) Security incident response procedures; and

(e) Employee background checks and security training.

8.3 Security Certifications.

☐ SOC 2 Type II
☐ ISO 27001
☐ HITRUST CSF
☐ Other: [________________________________]

8.4 Data Ownership. Customer retains all right, title, and interest in Customer Data. Provider acquires no rights except as needed to provide the SaaS Services.

8.5 Data Use. Provider shall process Customer Data solely to provide the SaaS Services. Provider shall not sell, share, or use Customer Data for purposes other than those expressly permitted herein.

8.6 Data Return and Deletion. Upon termination, Provider shall return or delete Customer Data within [____] days and certify deletion upon request.

8.7 Subprocessors. Provider shall not engage subprocessors without prior written notice. Provider shall impose equivalent data protection obligations on subprocessors.

9. INTELLECTUAL PROPERTY AND FEEDBACK

9.1 Provider IP. Provider retains all right, title, and interest in the SaaS Services, Documentation, and all Intellectual Property Rights therein.

9.2 Customer IP. Customer retains all right, title, and interest in Customer Data.

9.3 Usage Data. Provider may collect and use Usage Data for operations and improvements, provided it does not identify Customer or individuals.

9.4 Feedback. Customer grants Provider a perpetual, irrevocable, worldwide, royalty-free license to use any Feedback without restriction.

10. CONFIDENTIALITY

10.1 Obligations. Each Receiving Party shall: (a) use Confidential Information solely for Agreement purposes; (b) protect it with reasonable care; (c) limit disclosure to those with a need to know; and (d) not disclose to third parties without consent.

10.2 Exclusions. Confidential Information excludes: (a) publicly available information; (b) previously known information; (c) information from third parties; or (d) independently developed information.

10.3 Compelled Disclosure. Disclosure is permitted if compelled by law, with prompt notice and cooperation on protective order efforts, to the extent permitted by applicable Hawaii law.

10.4 Trade Secrets. Trade secret obligations survive indefinitely under the Hawaii Uniform Trade Secrets Act (HRS § 482B-1 et seq.) and the Defend Trade Secrets Act (18 U.S.C. § 1836 et seq.). Other confidentiality obligations survive for [____] years after termination.

10.5 Return of Materials. Upon termination, each Party shall return or destroy the other's Confidential Information.

11. REPRESENTATIONS AND WARRANTIES

11.1 Mutual Warranties. Each Party warrants that: (a) it is duly organized and in good standing; (b) it has authority to enter this Agreement; (c) execution does not conflict with existing obligations; and (d) it shall comply with applicable laws, including Hawaii state laws.

11.2 Provider Warranties. Provider warrants that: (a) the SaaS Services shall materially conform to Documentation; (b) Professional Services shall be performed professionally; (c) the SaaS Services shall not contain Malicious Code; (d) Provider shall not materially decrease functionality; and (e) to Provider's knowledge, the SaaS Services do not infringe third-party IP rights.

11.3 Customer Warranties. Customer warrants that: (a) it has the right to provide Customer Data; (b) Customer Data does not infringe rights; and (c) use shall comply with applicable laws and the AUP.

11.4 Warranty Remedies. Provider shall correct non-conformities or Customer may terminate the affected Order Form for a pro-rata refund.

11.5 Disclaimer. TO THE EXTENT PERMITTED BY HAWAII LAW, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, PROVIDER MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE SERVICE.

12. INDEMNIFICATION

12.1 Provider Indemnification. Provider shall defend and indemnify Customer against third-party IP infringement claims arising from authorized use of the SaaS Services.

12.2 Exclusions. Provider has no obligation for infringement arising from: (a) Customer modifications; (b) combination with non-Provider products; (c) use outside Documentation; (d) Customer Data; or (e) non-current versions.

12.3 IP Remediation. Provider may: (a) procure continued use rights; (b) modify for non-infringement; or (c) terminate and refund unused prepaid Fees.

12.4 Customer Indemnification. Customer shall defend and indemnify Provider against claims from Customer Data, AUP breaches, or unauthorized use.

12.5 Process. Prompt notice, defense control to indemnifying Party, and cooperation. No settlement imposing obligations without consent.

13. LIMITATION OF LIABILITY

13.1 Liability Cap. EACH PARTY'S TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED FEES PAID OR PAYABLE DURING THE [____]-MONTH PERIOD PRECEDING THE CLAIM, EXCEPT AS SET FORTH IN SECTION 13.3.

13.2 Exclusion of Consequential Damages. NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, OR DATA, EXCEPT AS SET FORTH IN SECTION 13.3.

13.3 Carve-Outs. Sections 13.1 and 13.2 do not apply to: (a) indemnification obligations; (b) confidentiality breaches; (c) data breach obligations under Section 8; (d) breach of usage restrictions; (e) willful misconduct or gross negligence; (f) Fee payment obligations; or (g) violations of HRS § 480-2 (unfair or deceptive acts) to the extent limitation is prohibited by Hawaii law.

13.4 Consumer Protection. Nothing in this Section limits either Party's liability for violations of the Hawaii Consumer Protection Act (HRS Ch. 480) to the extent such limitation is prohibited by Hawaii law. Under HRS § 480-13, consumers may recover actual damages or $1,000, whichever is greater, plus attorney's fees and costs.

13.5 Basis of the Bargain. The limitations reflect the allocation of risk and form an essential basis of the bargain.

14. TERM AND TERMINATION

14.1 Initial Term. This Agreement commences on the Effective Date and continues for the Subscription Term in the Order Form.

14.2 Renewal. Unless either Party provides written notice of non-renewal at least [____] days prior to expiration, this Agreement automatically renews for successive [____] periods.

14.3 Termination for Cause. Either Party may terminate upon: (a) material breach uncured within [____] days of written notice; or (b) insolvency.

14.4 Termination for Convenience. Either Party may terminate for convenience upon [____] days' notice. Customer remains liable for Fees through the current Subscription Term.

14.5 Effect of Termination. Upon termination: (a) all licenses terminate; (b) Customer ceases use; (c) Confidential Information is returned or destroyed; (d) Customer Data is available for export for [____] days; and (e) accrued Fees are due.

14.6 Survival. Sections 2, 7 (accrued obligations), 8.6, 9, 10, 11.5, 12, 13, 14.5, 14.6, 15, and 16 survive termination.

15. GOVERNING LAW AND DISPUTE RESOLUTION

15.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Hawaii, without regard to conflict-of-laws principles.

15.2 Dispute Escalation. The Parties shall attempt good-faith resolution through senior executive negotiation within [____] days of escalation notice.

15.3 Forum Selection. Select the applicable method:

☐ Litigation. Exclusive jurisdiction in the state and federal courts located in [________________________________] County, Hawaii (Circuit Court of the [____] Circuit). The Parties waive objections to venue and forum non conveniens.

☐ Arbitration. Binding arbitration administered by the AAA under its Commercial Arbitration Rules in Honolulu, Hawaii, by [____] arbitrator(s). The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs enforcement.

☐ Mediation then Arbitration. Mediation first (including the option of mediation through the Mediation Center of the Pacific), followed by arbitration if unresolved within [____] days.

15.4 Jury Trial Waiver. TO THE FULLEST EXTENT PERMITTED BY HAWAII LAW, EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY ACTION ARISING OUT OF THIS AGREEMENT.

15.5 Injunctive Relief. Either Party may seek injunctive relief to prevent irreparable harm without posting a bond, to the extent permitted by Hawaii law.

16. GENERAL PROVISIONS

16.1 Force Majeure. Neither Party is liable for delays due to causes beyond reasonable control, including natural disasters (earthquakes, hurricanes, tsunamis, volcanic activity), pandemics, government acts, war, or cyberattacks. If a Force Majeure Event continues for [____] days, the unaffected Party may terminate.

16.2 Assignment. Neither Party may assign without consent, except to an Affiliate or in connection with a merger or asset sale.

16.3 Notices. All notices shall be in writing, delivered by hand, overnight courier, certified mail, or email with confirmation.

16.4 Severability. Invalid provisions shall be modified to the minimum extent necessary; remaining provisions continue in full force.

16.5 Entire Agreement. This Agreement, Order Forms, Exhibits, DPA, and AUP constitute the entire agreement.

16.6 Amendments. Amendments require a writing signed by both Parties.

16.7 Waiver. No waiver is effective unless in writing.

16.8 Counterparts. This Agreement may be executed in counterparts. Electronic signatures are valid under the Hawaii Uniform Electronic Transactions Act (HRS Ch. 489E) and the E-SIGN Act (15 U.S.C. § 7001 et seq.).

16.9 Independent Contractors. The Parties are independent contractors.

16.10 No Third-Party Beneficiaries. No third party has rights under this Agreement.

16.11 Order of Precedence. In conflict: (1) DPA; (2) this Agreement; (3) Order Form; (4) SLA; (5) AUP.

16.12 Export Compliance. Each Party shall comply with U.S. export control laws, including EAR and OFAC sanctions.

16.13 Anti-Corruption. Each Party shall comply with the FCPA and applicable anti-corruption laws.

16.14 Hawaii Consumer Protection Compliance. The Parties shall conduct all activities under this Agreement in compliance with HRS § 480-2, which prohibits unfair or deceptive acts or practices in the conduct of any trade or commerce. Any representation concerning the SaaS Services shall be truthful and not misleading.

17. SIGNATURES

☐ Provider has reviewed and agrees to all terms and conditions
☐ Customer has reviewed and agrees to all terms and conditions
☐ Legal counsel review completed

PROVIDER:

Signature: [________________________________]
Printed Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

CUSTOMER:

Signature: [________________________________]
Printed Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

EXHIBIT A — ORDER FORM

Order Form No.: [________________________________]
Agreement Reference: Enterprise SaaS Agreement dated [__/__/____]

Special Terms:
[________________________________]

Provider: _________________________ Date: [__/__/____]
Customer: _________________________ Date: [__/__/____]

EXHIBIT B — SLA SUMMARY

1. Uptime Commitment: [____]% monthly availability

2. Scheduled Maintenance Windows:

• Day(s): [________________________________]
• Time: [________________________________] (Hawaii-Aleutian Time)
• Advance Notice: [____] hours

3. Service Credit Schedule:

4. Maximum Monthly Credit: [____]% of monthly Fees

5. Support Response Times:

6. Support Channels:

☐ Email: [________________________________]
☐ Phone: [________________________________]
☐ Portal: [________________________________]

7. Support Hours:

☐ 24/7/365
☐ Business Hours: [________________________________] (Hawaii-Aleutian Time)

This template is provided for informational purposes only and does not constitute legal advice. Consult an attorney licensed in Hawaii before executing this agreement.