SOFTWARE AS A SERVICE (SaaS) AGREEMENT
This agreement (the “Agreement”) constitutes a binding agreement between xyzt.ai BV, with registered office at Kempsesteenweg 302/200 3500 Hasselt, Belgium, VAT-BE-0721.781.156 (the “Service Provider”), andthe customer entity entering into this Agreement as per the details provided by or on behalf of this entity on the Service Provider’s website when accepting the terms and conditions of this Agreement (the “Customer”).
BY ACKNOWLEDGING ACCEPTANCE OF THE AGREEMENT, YOU ACCEPT (TO BE COMMITTING THE CUSTOMER) TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, INCLUDING THOSE SET OUT IN ANY DOCUMENTS ANNEXED TO OR REFERENCED IN THIS AGREEMENT. BY ACCESSING THE SERVICES, OR CLICKING ON THE AGREEMENT “ACCEPT” (OR EQUIVALENT) BUTTON, YOU ARE CONSENTING (AND COMMITTING THE CUSTOMER ) TO BE BOUND BY THIS AGREEMENT AND ANY DOCUMENTS ANNEXED TO OR REFERENCED IN IT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND ANY DOCUMENTS ANNEXED TO OR REFERENCED IN IT ON BEHALF OF THE CUSTOMER AND TO BIND THE CUSTOMER TO THIS AGREEMENT, AND THAT THE CUSTOMER DETAILS PROVIDED ARE ACCURATE AND COMPLETE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, OR DO NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER, IMMEDIATELY DISCONTINUE (ANY ATTEMPT TO) ENTER INTO THE AGREEMENT, OR ACCESS OR USE THE SERVICES.
This Agreement shall commence on the date the Customer consents or is deemed to have consented (as per the terms of this Agreement) to the terms and conditions of this Agreement (the “Effective Date”) and shall continue for the term set out in clause 10 below.
The Customer and the Service Provider may individually be referred to as a “Party” and jointly as “the Parties”.
Whereas the Service Provider has developed and/or owns certain software applications through which it provides services to customers in a ‘software as a service’ mode.
Whereas the Customer wishes to use the Service Provider’s ‘software as a service’ in its business operations.
Whereas the Service Provider has agreed to provide, and the Customer has agreed to purchase, the Service Provider’s service subject to the terms and conditions of this Agreement.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Definitions and Interpretation
1.1 Capitalised terms used in this Agreement shall have the meaning ascribed to them in Schedule A (Definitions) to this Agreement. The body of the Agreement and the Schedules may however contain additional definitions.
1.2 Whenever the word “include(s)” or “including” is used in this Agreement, the enumeration that follows shall be deemed to be non-exhaustive. The headings in this Agreement shall not affect its interpretation.
2. Services – Managed Infrastructure/ Service Provider Undertakings
2.1 The Service Provider shall, during the Term, provide the Services to the Customer subject to the terms and conditions of this Agreement.
2.2 The Service Provider shall make available the Services as set out in the Documentation in accordance with the service levels set out in the Documentation. The Service Provider shall be responsible for the set-up and maintenance of the Managed Infrastructure. The Managed Infrastructure will be located in (one or more countries of) the European Economic Area.
2.3 The Service Provider shall provide the Services through the Managed Infrastructure and does not control, nor accept any responsibility in relation to, any event occurring outside of, or any software, hardware, network or other infrastructure component outside of the scope of the Managed Infrastructure. The Service Provider shall not provide for any Customer-side hardware or software, or services (including programming or training), or hardware or software not expressly defined in this Agreement to be a Service Provider responsibility. Technical support outside of the Services scope expressly defined herein (including assistance with Customer-side or workstation-side configuration, errors or issues, any user-specific software customisations, any configuration or troubleshooting of non-Services related software products, or resolution of network issues outside the scope of the Managed Infrastructure) is out of scope of this Agreement and shall only be provided for if expressly separately contracted between the Parties.
2.4 The Service Provider’s undertaking to provide the Services, and any associated warranties as may be set out in this Agreement, are conditional upon the Customer timely putting in place and maintaining all hardware, software, systems and network connectivity needed to connect to and use the Services, including in accordance with the System specifications and minimum requirements as specified in the Documentationor as otherwise communicated by the Service Provider from time to time (provided the Service Provider has granted the Customer a reasonable time to implement any changes to such requirements). The Service Provider shall not be responsible for any delays or additional fees and costs resulting from the Customer’s failure to timely comply with the above requirement.
2.5 The Service Provider may make changes or updates to the Managed Infrastructure and Services specifications (including the infrastructure, technical configuration, application features) during the Term (including to reflect changes in technology, industry practices, or patterns of system use) without having to obtain the Customer’s consent, provided that these changes (i) do not adversely impact the agreed functionality, performance or availability of the Services, and (ii) do not result in an increase of the agreed Charges. In the event the Service Provider envisages making changes that are likely to have an adverse impact on the Services, such changes need to be discussed, planned and agreed prior to their implementation. The Service Provider may additionally perform planned and unplanned maintenance on the Managed Infrastructure as communicated from time to time, without having to obtain the Customer’s consent.
2.6 The Service Provider’s back-up and restore undertakings shall be as set out in the relevant third-party hosting provider’s terms and conditions. Such back-up undertakings applicable as at the Effective Date are as set out in https://aws.amazon.com/backup/sla/. In the event of loss of Customer Data, to the extent caused by the Service Provider’s breach of its contractual obligations hereunder, as the Customer’s sole remedy, the Service Provider shall provide such remedies as available to the Service Provider under the third-party hosting provider’s terms and conditions.
2.7 During the Term, the Service Provider shall implement proven actions and precautions to prevent the introduction and proliferation of a Virus into the Systems.
3. Right of use
3.1 During the Term and subject to timely payment of any undisputed Charges as they fall due, the Service Provider grants to the Customer a restricted, personal (non-transferable, non-assignable, without the right to sublicense, except as expressly stipulated otherwise in the Agreement), non-exclusive right to (permit the Authorised Users to) use the Services and the Documentation solely for the Customer’s internal business operations.
3.2 The Customer acknowledges and agrees that it is not granted any Software license pursuant to this Agreement, and that the Customer shall not be provided with a copy of the Software pursuant to this Agreement. The Customer shall merely be entitled to access the Software for the purpose of obtaining the Services. To this end, the Customer shall be provided with Access Credentials in respect of each of the Authorised Users.
4. Customer undertakings
4.1 The Customer shall provide the Service Provider with:
(i) such co-operation as reasonably required for the Service Provider to be able to adequately fulfil its obligations under this Agreement; and
(ii) (access to) such information as may reasonably be requested by the Service Provider or as may otherwise reasonably be required for the Service Provider to adequately perform the Agreement.
4.2 The Customer undertakes to use all reasonable efforts to procure that the Authorised Users use the Services in accordance with the terms and conditions of this Agreement. Without limiting the foregoing, the Customer shall be responsible for identifying and authenticating all Authorised Users, for approving and revoking access to the Services by such Authorised Users, for controlling against unauthorised access to the Services, and for maintaining the confidentiality of Access Credentials. The Customer accepts responsibility for the confidentiality and timely and proper termination of user records in the Customer’s local (e.g. intranet) identity infrastructure or on the Customer’s local computers and systems. The Customer will be responsible for all activities that occur under the Authorised Users’ access credentials (whether performed by an Authorised User or third party), and for implementing its own security measures in order to safeguard the Access Credentials and to prevent disclosure of these Access Credentials to any unauthorised third party. The Customer shall without undue delay notify the Service Provider of any unauthorised access to or use of the Services.
The Customer further undertakes that:
- (i) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of licensed Authorised Users (as per the terms of the Order) at any given time;
- (ii) it shall not allow any Authorised User account to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and Documentation.
4.3 The Customer shall ensure that its Systems comply with the specifications and minimum requirements specified in the Documentationor as otherwise communicated by the Service Provider (as per Article 2.4). The Customer shall be solely responsible for the consequences of the Systems not being compliant with such System requirements. The Customer shall be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the data centres used by the Service Provider to provide the Services, and agrees that the Service Provider shall not be responsible for any problems, delays, delivery failures or other loss or damage to the extent arising from or relating to the Customer’s infrastructure and the physical data connection line between the Parties’ respective data centres.
4.4. The Customer shall not knowingly or by negligence introduce Viruses into the Managed Infrastructure through its use of the Services. To this end, the Customer shall implement proven actions and precautions to prevent the introduction and proliferation of a Virus into the Managed Infrastructure. In the event a Virus is found to have been so introduced into the Managed Infrastructure, the Customer shall assist the Service Provider in reducing the effects of the Virus and, if the Virus causes a loss of operational efficiency or loss of data, to assist the Service Provider to mitigate and restore such losses.
4.5. Customer shall be responsible for the use of the Services by the Authorised Users. The Customer undertakes that it shall not (and shall procure that the Authorised Users shall not):
a. attempt to obtain, or assist third parties in obtaining, access to the Services other than as expressly permitted hereunder;
b. perform any Services benchmarks, or disclose the results of any such benchmark tests, without the Service Provider’s prior written consent;
c. bypass or breach any security device or protection used for or contained in the Services;
d. engage in any activity which interferes with or disrupts the Services;
e. except to the extent such restriction is prohibited under applicable law:
(i) (attempt to) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software, Services and/or Documentation (as applicable) in any form or media or by any means, save as may be expressly permitted hereunder; or
(ii) (attempt to) reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software (the foregoing prohibition includes review of data structures or similar materials produced by the Software);
f. (attempt to) access all or any part of the Software, Services and Documentation for any purpose other than as expressly permitted herein, including (without limitation) in order to build a product or service which competes with the Software, Services and/or the Documentation (as determined by the Service Provider in its sole discretion); or
g. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except (to the Authorised Users) as expressly permitted hereunder.
If the Customer becomes aware of any breach of this Article 4.5, it shall notify the Service Provider thereof without undue delay.
4.6 The Customer shall not perform, or disclose any results of, security testing in respect of the Services or the Managed Infrastructure (including network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing), except to the extent the Service Provider has provided its prior written authorisation for such performance or disclosure or to the extent required pursuant to a request by a regulatory authority (in which case, to the extent permitted under such request, the Customer shall notify the Service Provider of such request and the information to be shared, the Customer shall limit disclosure to what is strictly required for the purposes of such request, and shall use reasonable efforts to have confidential treatment accorded to such information). In the event the Service Provider has provided its consent, the Parties shall separately agree in writing on the conditions and modalities related to such performance or disclosure (as applicable).
5. Customer Data – Personal Data
5.1 In using the Services, the Customer may transmit and upload Customer Data to the Managed Infrastructure. The Customer acknowledges and agrees that, if the Customer uploads Customer Data, the Customer (rather than the Service Provider) shall control such Customer Data and the Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data, and for obtaining the necessary authorisations to use (and have the Service Provider use as per the terms of this Agreement) such Customer Data. The Service Provider shall only process Customer Data to the extent required for the performance of the Services. The Customer hereby grants the Service Provider authorisation to view, store, copy and delete or otherwise process Customer Data as part of the Service Provider’s performance of the Services, and the Customer irrevocably consents and agrees to the processing of such Customer Data by the Service Provider, to the extent the purpose of such processing is legitimate and limited to the provision of the Services. The Customer acknowledges and agrees that, to the extent Services provision is dependent on the Customer timely having made available the Customer Data, the Service Provider cannot be held responsible for failure to provide the Services in accordance with the Agreement to the extent such failure is attributable to such Customer dependency not having been met.
5.2 To the extent that the Customer Data contain Personal Data, resulting in the processing of Personal Data by the Service Provider pursuant to this Agreement, such processing shall be subject to the terms of the Data Processing Agreement, which is incorporated herein by reference. The Customer acknowledges and agrees that, except as strictly required for the Customer to be able to use the Services and for the Service Provider to be able to perform the Services hereunder, the Service Provider does not wish to receive any Personal Data (whether related to the Customer, its customers, the Authorised Users, or otherwise) pursuant to this Agreement. If the Customer provides the Service Provider with Personal Data in excess of what is stipulated above, the Service Provider cannot be held liable towards the Customer in the event of a breach of any data protection, information security or confidentiality obligations under the Agreement in respect of such excess data.
5.3 In the event of any loss or damage to Customer Data hereunder, to the extent such loss or damage is attributable to the Service Provider, Article 2.6 of the Agreement shall apply. Without prejudice to the foregoing, the Customer shall be responsible for retaining backup copies of all Customer Data.
5.4 The Customer acknowledges and agrees that the Service Provider shall have no responsibility for the content of any Customer Data processed by the Customer in connection with its use of the Services, save to the extent such content were to be modified, corrupted or deleted as a result of the Service Provider’s non-compliance with its obligations hereunder. The Customer undertakes and warrants that the Customer Data which it processes in using the Services (i) shall comply with applicable laws and regulations, and (ii) shall not violate or infringe any intellectual property rights or other rights of any third party. To the extent necessary, the Customer shall obtain and shall maintain all necessary licences, consents, and permissions in respect of the Customer Data as necessary for the Service Provider to perform the Services under this Agreement. The Customer shall indemnify and hold the Service Provider harmless in respect of any third-party claim based on an (alleged) breach of the Customer’s undertakings as set out in this Article.
5.5 The Service Provider reserves the right, without liability and without prejudice to any other rights and remedies available hereunder, to remove specific Customer Data or to suspend Services provision as strictly required in the event it were to become legally compelled to do so (including in order to comply with a legal, regulatory, law enforcement or other governmental request). In such event, the Service Provider shall notify the Customer without undue delay to the extent legally permitted. In any other instances where the Service Provider reasonably believes that Customer Data transmitted through the Services (are likely to) breach applicable laws or regulations, the Service Provider shall inform the Customer in writing (email shall suffice for this purpose), in which case the Parties shall without undue delay discuss the matter pursuant to the applicable governance process and agree, acting reasonably and in good faith, on the appropriate measures to be taken in order to prevent or end such a breach and to prevent it from reoccurring in the future.
6. Liability and Disclaimer
6.1 The Service Provider shall not be responsible for any non-compliance with its obligations hereunder to the extent not attributable to it, including any non-compliance caused by use of the Services contrary to the Agreement, the modification or alteration of the Software or Services by any party other than the Service Provider or any party acting on its behalf or under its control, or any event occurring outside of, or component outside of, the scope of the Managed Infrastructure.
6.2 The Service Provider (i) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free, nor that the Services will achieve any intended result, or will be compatible or work with any other goods, services, technologies or materials (including any software, hardware, system or network) other than as expressly specified in this Agreement; and (ii) will not be responsible for any delays, delivery failures, or any other loss or damage to the extent resulting from the transfer of data over communications networks and facilities, including the internet, provided the Service Provider has complied with its obligations hereunder, and the Customer acknowledges that the Services may be subject to limitations and delays inherent to the use of such communications facilities.
6.3 Save as expressly stated in this Agreement, the Service Provider does not make any warranties, express or implied, including warranties of merchantability and fitness for a particular purpose, in respect of the Services or otherwise in relation to the Agreement.
6.4 To the maximum extent permitted under applicable law, the Service Provider excludes its liability for any lost revenue or profits, loss of business, damages due to business interruption, loss or corruption of data (except to the extent expressly stipulated otherwise in the Agreement), loss of competitive advantage, opportunity loss, loss of anticipated savings, the cost of procuring substitute goods or services, reputational damage, or for any indirect, incidental, punitive, or consequential damage.
6.5 To the maximum extent permitted under applicable law, the Service Provider’s liability hereunder shall not exceed, (i) per liability event, the Charges (excl. taxes and reimbursable expenses) paid by the Customer pursuant to the Order in respect of which the liability has arisen, during the applicable term (Initial Term or Renewal Term, as applicable) in which the liability has arisen, and (ii) in the aggregate (all claims combined) under an Order, the Charges (excl. taxes and reimbursable expenses) paid by the Customer pursuant to such Order.
6.6 The above limitations on and exclusions from liability shall not apply to the extent not permitted under applicable law, or to the extent the liability is attributable to fraud or wilful misconduct by the Service Provider.
7.1 The Parties acknowledge and agree that their relationship is one of trust and confidence and that in the course of performing this Agreement, each may have access to information of a proprietary and/or confidential nature of the other Party. For the purposes of this Agreement, such information shall constitute “Confidential Information” if (i) it is expressly marked or designated as confidential or a similar designation, or (ii) it should reasonably be considered confidential given its nature or the circumstances surrounding its disclosure. Confidential Information shall in any event include (without being limitative) all types of financial, business, technical, competitively sensitive or engineering information including patterns, plans, compilations, program devices, concepts, know-how, techniques, formulas, blueprints, designs, prototypes, samples, sketches, drawings, methods, processes, procedures, software, intellectual property, codes, marketing plans, financial plans, business plans, and names of customers and suppliers, whether tangible or intangible, and regardless of whether or how stored, compiled, or memorialized (whether physically, electronically, graphically, photographically, or in writing), and all copies of any of the foregoing and any analyses, studies or reports that contain, are based on, or reflect any of the foregoing.
7.2 Each Party agrees to maintain in confidence and not to disclose the other Party’s Confidential Information to third parties without the prior written consent of the disclosing Party, provided that the Service Provider shall be entitled to disclose Customer Confidential Information to those of its and its affiliates’ employees, directors, officers, contractors and professional advisors that have a reasonable need to know such information for the purposes of this Agreement. Each Party agrees not to use the other Party’s Confidential Information for its own benefit and to take all reasonable measures to maintain the confidentiality of all such Confidential Information in its possession or control, which shall, in no event, be less than the measures it uses to protect its own confidential information of a similar nature. A Party’s confidentiality obligations hereunder shall not apply to any information which (i) is or becomes generally known under circumstances involving no breach by the receiving Party of its confidentiality obligations hereunder, (ii) is approved for release by written authorization from the disclosing Party, (iii) is disclosed to the receiving Party without confidentiality restrictions, by a third party that is not under any obligation of confidentiality to the disclosing Party, (iv) is developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, or (v) is legitimately in the receiving Party’s possession, without confidentiality restrictions, prior to receipt from the disclosing Party.
7.3 In the event that the receiving Party becomes legally compelled to disclose the disclosing Party’s Confidential Information, the receiving Party shall provide the disclosing Party with prompt notice so that the disclosing Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, the receiving Party shall furnish only that portion of the Confidential Information which is legally required and the receiving Party shall seek to obtain reasonable assurance that confidential treatment will be accorded to that Confidential Information.
7.4 Upon the disclosing Party’s written request, the receiving Party shall promptly discontinue use of the Confidential Information and promptly return any Confidential Information to the disclosing Party, or, at the disclosing Party’s option, destroy the same, and deliver a written statement certifying that its obligations under this clause 7.4 have been complied with. Each Party acknowledges that a breach of this Section 7 may cause irreparable harm to the other Party and that the other Party shall be entitled to seek injunctive or other equitable relief in the event of such a breach, in addition to any other remedies it may have in contract, at law or in equity.
7.5 The confidentiality obligations hereunder shall survive termination of this Agreement for a period of three (3) years.
8.1 As consideration for the Services, the Customer shall pay to the Service Provider the Charges as set out in the applicable Order, in accordance with the invoicing schedule set forth in such Order. The applicable tier shall be specified in the Order. The Customer cannot change to a lower tier level during the Term (Initial Term or Renewal Term, as applicable), and the Service Provider shall not be held to any refund in the event the Customer, in practice, does not reach the tier subscribed to.
In the event the Customer, during the Term, exceeds the tier subscribed to as set out in an Order, the Charges shall automatically be increased accordingly, prorated for the remaining Term, and such additional Charges shall be additionally payable by the Customer at the end of the then current Term (Initial Term or Renewal Term, as applicable) or as otherwise stipulated in the Order. Such new tier shall then constitute the new minimum basis for calculating the Charges for the remainder of the Term (Initial Term or Renewal Term, as applicable).
8.2 Expenses (including travel (incl. local transport and flights), accommodation and out-of-pocket expenses) incurred by the Service Provider in furtherance of this Agreement shall be charged to the Customer at cost, in addition to the Charges. Such expenses shall be subject to the Customer’s prior consent (such consent not to be unreasonably delayed or withheld) and shall be evidenced by receipts. Undisputed invoices are due and payable by the Customer within thirty (30) days from the invoice date. The amount of any undisputed invoice which has not been paid by the due date shall automatically be subject to a late payment interest equal to 1.5% per month, which interest shall be compounded daily as of the due date until receipt of full payment by the Service Provider. In addition, the Customer shall pay the costs incurred by the Service Provider as a result of the (extra)judicial enforcement of the Customer’s payment obligations hereunder. If the Customer fails to pay any undisputed outstanding amounts by the due date, the Service Provider shall be entitled to suspend its obligations and the Customer’s rights hereunder until receipt of payment of such outstanding amounts.
8.3 Charges payable to the Service Provider hereunder shall be paid without a right to set off and free and clear of all deductions or withholdings, unless the same are required by law, in which case the Customer undertakes to pay the Service Provider such additional amounts as is necessary in order that the net amounts received by the Service Provider after all deductions and withholdings shall not be less than such payments would have been in the absence of such deductions or withholding.
8.4 If the Customer disputes any portion of an invoice, the Customer shall notify the Service Provider without delay and in any event within the payment term of the nature of any such dispute, the basis for the Customer’s dispute and the amount involved, together with any appropriate information supporting the Customer’s position, failure of which shall result in the invoice being deemed accepted by the Customer. The undisputed portion of the invoice shall be paid as set forth herein.
8.5 All amounts payable by the Customer under this Agreement are exclusive of any applicable sales, use, value added, excise, services and/or other taxes that may be assessed currently or in the future. If such a tax is assessed under this Agreement as specified in the prior sentence, the Customer will be responsible for the payment of such taxes. If the Service Provider pays or has paid such amounts, the Customer hereby holds the Service Provider harmless and shall promptly reimburse the Service Provider in full for such payments, including any applicable interest, penalties and other Service Provider fees and expenses related thereto.
8.6 In the event the Term extends beyond twelve months, the Service Provider may annually (starting 1 January following the Effective Date) increase the Charges on the basis of the Belgian Agoria Digital index, without any formalities being required.
9.1 The Customer acknowledges and agrees that the Service Provider and/or its licensors own and shall retain all rights, title and interest, including any Intellectual Property Rights, in the Software, the Services and the Documentation, and in the Managed Infrastructure. Except as expressly stated herein, this Agreement does not grant the Customer any rights in respect of the Software, the Services, the Documentation, or the Managed Infrastructure.
9.2 The Customer shall retain all rights in the Customer Data and except for the limited user rights granted to the Service Provider pursuant to Article 5, the Service Provider is not granted any rights therein.
9.3 Notwithstanding Article 9.2, the Service Provider shall own and retain all rights, title and interest, including any Intellectual Property Rights, in any databases created by it in making available and/or for the purposes of making available the Services.
9.4 The Service Provider may freely use any Feedback without attribution or the need for the Service Provider (or any third party) to pay the Customer or any third party any royalties or other fees of any kind, whereby “Feedback” means any suggestions or recommendations for improvement of, or modifications to, the Services made by or on behalf of the Customer.
10. Term and termination
10.1 This Agreement shall take effect from the Effective Date and shall continue unless and until terminated by either Party on giving at least three months’ notice or as otherwise terminated hereunder. Termination of the Agreement shall however not automatically result in the termination of any Orders, which shall continue and remain in full force and effect in accordance with their terms (and the terms of this Agreement shall continue to apply to such Orders), until separately terminated as permitted hereunder.
10.2 Unless expressly agreed otherwise in an Order, Orders shall be entered into for a committed twelve (12) month term (the “Initial Term”), the commencement date of which shall be specified in the Order. Upon expiry of the Initial Term, the Order shall automatically renew for successive committed twelve (12) month periods (each a “Renewal Term”) unless terminated by either Party on giving at least three (3) months’ notice prior to the expiry of the Initial Term or then current Renewal Term, or unless otherwise terminated as permitted hereunder.
10.3 A Party may terminate Orders upon written notice, in the event:
- of a material breach of this Agreement or such Order by the other Party, provided that, in each instance of a claimed breach: (i) the non-defaulting Party notifies the defaulting Party in writing of such a breach; and (ii) the defaulting Party fails to (a) cure such breach within thirty (30) days from receipt of such notice, and (b) make substantial progress to cure such breach and implement a plan that results in a cure of such breach within sixty (60) days from receipt of such notice. The Order may be terminated (or alternatively, at the Service Provider’s option, suspended) by the Service Provider if the Customer fails to pay any sum due under the Order within 15 days from receipt of a payment default notice.
- the other Party becomes the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business (each of the foregoing other than for the purposes of a solvent reconstruction or amalgamation).
10.4 Upon termination of an Order for any reason:
- the Order shall automatically terminate, except for those provisions stipulated herein to survive its termination;
- all user rights hereunder in respect of the Services in scope of such Order shall immediately and automatically terminate and the Service Provider shall have no further obligation to provide the Services;
- each Party shall return and cease all further use of any equipment, property, documentation, Confidential Information and other items (and all copies thereof) belonging to the other Party and obtained pursuant to this Agreement;
- at the Customer’s request only, the Service Provider will return the Customer Data in the format as stored (any conversion to another format at the Customer’s request will be at the Customer’s expense), at the Service Provider’s then applicable standard rates or as otherwise agreed. The Customer acknowledges and agrees that the Service Provider shall have no obligation to retain Customer Data and that the Customer Data may be irretrievably deleted upon expiry of a thirty (30) day period; and
- any termination of this Agreement shall not release either Party hereto from any liability which, at the time of such termination, had already accrued to the other Party or which is attributable to a period prior to such termination, nor preclude either Party from pursuing any rights or remedies it may have under contract, at law or in equity with respect to any breach of this Agreement.
10.5 In the event the Customer terminates an Order other than as expressly permitted hereunder, or if the Service Provider terminates an Order pursuant to Article 10.3, Charges payable in respect of the full committed term (Initial Term or Renewal Term, as applicable) shall remain payable in full (without any refund obligation on the Service Provider) and shall become payable by the Customer upon termination. In instances where the Customer terminates an Order pursuant to Article 10.3, Charges shall be payable by the Customer up to the actual termination date, and the Customer shall obtain a prorated refund in respect of any pre-paid fees (namely fees paid in respect of the period after the actual termination date).
10.6 The Service Provider may suspend the Services (a) in accordance with Article 5.5, (b) for purposes of planned and unplanned maintenance on the Managed Infrastructure, and (c) in the event of the security of the Services, of the Customer Data, or of the Managed Infrastructure being compromised, or if the Service Provider reasonably determines that suspension of the Services is needed to protect the integrity of the Services, Customer Data or Managed Infrastructure. In case of suspension pursuant to (a) or (c) above, the Service Provider shall (i) give the Customer an advance 24 hours’ notice, and (ii) carry out such suspension in consultation with the Customer, provided that the Service Provider shall be entitled to suspend on giving a shorter notice or no notice if the Service Provider reasonably determines (as can be substantiated by the Service Provider) that such shorter notice period or lack of notice is necessary in order to protect the justified interests of the Customer, the Service Provider, or a third party. In the event of such suspension, the Service Provider shall use reasonable efforts to mitigate adverse impact on the Customer.
11.1 Reference right. Use by one Party of the other Party’s name or trademarks in any public announcements or for promotional, advertising or other purposes, shall require the other Party’s prior written approval (such approval not to be unreasonably withheld). Notwithstanding the foregoing, the Service Provider shall be entitled to reference the Customer as a Service Provider customer in its commercial and marketing documentation and customer listings, as a sales reference, as well as on the Service Provider’s websites without having to obtain additional consent.
11.2 Assignment – Subcontracting. This Agreement or any Orders may not be transferred or assigned, whether in whole or in part, by either Party without the prior written consent of the other Party. Notwithstanding the foregoing, the Service Provider shall be entitled to subcontract performance of (part of) the Services without having to obtain the Customer’s prior consent, provided that the Service Provider shall remain responsible towards the Customer in respect of such subcontracted Services.
The Customer acknowledges and agrees that, as regards subcontracted hosting Services, any agreed performance, availability or other service levels as may be specified reflect the service levels offered to the Service Provider by such third-party Cloud/hosting providers, and that a change in subcontractor may therefore also result in a change in applicable service levels hereunder. Any third-party Cloud/hosting providers shall not be considered Service Provider subcontractors and any such hosting shall be subject to the applicable third-party hosting provider terms and conditions. The Customer hereby agrees to the terms and conditions of the third-party hosting provider as these may change over time. In the event of a conflict between such third-party terms and conditions and the Agreement, such third-party terms and conditions shall prevail as regards the activities subcontracted to such third-party provider.
11.3 Conflicts. In the event of a conflict between the Agreement and a Schedule, the Schedule shall prevail. In the event of a conflict between the provisions of this Agreement (including its Schedules) and the provisions of an Order, the Order shall prevail.
11.4 Entire Agreement – Successors – Paragraph Headings – Severability – Waiver. This Agreement, including any schedules hereto and Orders concluded hereunder, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, whether oral or written, between the Parties with respect to such subject matter. Additional or deviating terms and conditions (such as may be included in purchase orders or other Customer documents) are hereby expressly refused and rejected, even if the Service Provider does not refuse or reject such terms and conditions on a case by case basis. This Agreement shall bind and inure to the benefit of the Parties hereto and their respective successors and assigns. The paragraph headings of this Agreement are included merely for reference and are not to be used in interpreting this Agreement. The provisions of this Agreement are severable and if any one or more such provisions shall be determined to be invalid, illegal or unenforceable, in whole or in part, the validity, legality and enforceability of any of the remaining provisions or portions thereof shall not in any way be affected thereby. Any failure to enforce any provision of the Agreement shall not constitute a waiver thereof or of any other provision.
11.5 Force Majeure. Neither Party shall be liable for a delay or default in the performance of its non-monetary obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to fire, flood, accident, storm, acts of God, war, riot, government interference, terrorist attack, epidemic/pandemic, or strikes. Dates and times by which the Service Provider is required to perform under this Agreement or a Task Order shall be automatically postponed to the extent that the Service Provider is prevented from meeting them as a result of a force majeure event. If such inability to perform due to force majeure continues for three (3) consecutive months, either Party shall be entitled to terminate the Agreement and/or affected Orders on giving written notice.
11.6 Governing Law. This Agreement shall be exclusively governed by and construed in accordance with the laws of the country of incorporation of the Service Provider. The courts of the city/state of incorporation of the Service Provider shall have exclusive jurisdiction in respect of any dispute arising hereunder which cannot be amicably settled between the Parties within a reasonable period of having arisen.
11.7 Independent Contractor. The Service Provider shall perform the Services as an independent contractor. Nothing contained in this Agreement or a Task Order shall be construed as creating any agency, partnership or other form of joint enterprise between the Parties, or as creating an employment relationship between the Customer and assigned Service Provider resources. Neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. The Customer shall retain control over, and responsibility for, all decisions affecting its business.
11.8 Notices. All notices to be given to any Party hereunder shall be in writing and shall be deemed to have been given (i) on the date of receipt if hand delivered, (ii) three days after being sent by registered mail, or (iii) on the date of receipt, with receipt confirmed, if sent by courier (as per courier’s records), in each case at the address and addressed to such contact as set forth in the relevant Order, or in accordance with the latest unrevoked direction from such Party delivered in accordance with this clause.
11.9 Non-solicitation. During the term of this Agreement and for a period of twelve (12) months thereafter, the Customer shall not, directly or indirectly, hire or otherwise engage, in whatever capacity (including as an employee or consultant), or solicit the services of, any personnel member of the Service Provider or its affiliates, while such person is employed or engaged by the Service Provider or its affiliates and during six months after such employment or engagement ends. For the purposes of this section, “hire” means to employ an individual as an employee or engage such individual as an independent contractor, whether on a full-time, part-time or temporary basis.
In case the above non-solicitation/non-hire obligations are not complied with and give rise to actual employment/engagement of the Service Provider’s or its affiliates’ personnel, the Customer shall compensate the Service Provider by paying, upon a first request, a lump-sum amount corresponding to twelve times the gross salary/compensation each such person so hired/engaged earned with the Service Provider or its affiliates during the last full month such person worked for the Service Provider or its affiliates.
11.10 No third-party beneficiaries. This Agreement (or any Order) does not confer any rights on any person or party other than the Parties and, where applicable, their successors and permitted assigns.
11.11 Survival. The provisions that are expressly or by their nature intended to survive termination of the Agreement, including Articles 1, 5.3, 5.4, 6, 7 8, 9, 10.4, 10.5, and 11 (as applicable), shall survive any termination or expiration of this Agreement.
List of Schedules
The following Schedules are attached to this Agreement and form an integral part thereof:
Schedule A: Definitions
The following definitions shall apply to this Agreement:
- Access Credentials: the username, password, private keys, certificates, account details and similar credentials as may be issued to the Authorised Users (whether by the Service Provider or a third party (subcontractor)), enabling access to the Services.
- Authorised Users: employees of the Customer (any third parties being subject to the Service Provider’s prior written consent (pursuant to an Order or otherwise)) who are authorised by the Customer to access and use the Services for the Customer’s internal business operations.
- Charges: the fees payable by the Customer pursuant to the Agreement as consideration for the Services, as specified in the individual Orders.
- Customer Data: the data transmitted to, uploaded onto or stored on the Managed Infrastructure by the Authorised Users in using the Services.
- Data Processing Agreement: the data processing agreement available at https://xyzt.ai/data-processing-agreement/.
- Documentation: the documentation made available to the Customer by the Service Provider from time to time (in a format and through means of the Service Provider’s choice), which documentation sets out a description of the Services and the user instructions for the Services. The Documentation is available at https://docs.platform-xyzt.ai/.
- Intellectual Property Rights: patents, trademarks, service marks, trade secrets, copyright, design rights, know-how, rights in Confidential Information, trade and business names, domain names, database rights and any other intellectual or industrial property or similar rights throughout the world, including applications for and the right to apply for, maintain and enforce protection in respect of any of the preceding items.
- Managed Infrastructure: the hardware and software components (including hardware, software (including the Software), servers, networks and technology installed within the hosted environment) through which the Services are provided, excluding any hardware, software or telecommunication networks outside of the scope of the Service Provider’s span of control (such as, but not limited to, the software or hardware the Customer requires to remotely access the Services, the internet and the telecommunications networks used by the Customer to connect to the Managed Infrastructure).
- Order: an order entered into between the Parties and governed by the terms of the Agreement (the terms of which are incorporated into the Order by reference), signed by the Parties’ duly authorised representatives, specifying (among others) the Term and Charges.
- Services: the services as described in the Documentation.
- Software: the Service Provider proprietary software underlying the Services, as further described in the Documentation.
- System(s): the hardware, software, operating system and operating infrastructure or networks set up or used by the Customer to use the Services. The System requirements as at the Effective Date are described in the Documentation.
- Term: the term of an Order (Initial Term and Renewal Term (as per Article 10) combined).
- Virus: viruses, worms or similar harmful code.
Schedule B: SLA
xyzt.ai will use commercially reasonable efforts to make the included services available with a monthly uptime percentage of at least 99.9%, in each case during any monthly billing cycle. Service credits will be applied in case this commitment is not reached according to following schedule
|Monthly uptime||Service credit percentage|
|<99.9% and >=99.0%||10%|
|<99.0% and >=95%||30%|
To receive a service credit you must submit a claim to xyzt.ai via firstname.lastname@example.org with subject line “SLA credit request” and providing the needed information on dates, times, duration of the downtown you are claiming. This request needs to be received no later than 2 months after the relevant month. Service credits will be applied towards future payments if the monthly uptime percentage is confirmed to be below the required uptime percentage.