The below terms (the “Divestment Clause”) shall apply in addition to the Cloud Services Terms in order to ensure the continuation of the rights and obligations of the Parties under the Agreement further to a divestment by Client.
In the event of inconsistency or conflict between the Divestment Clause and the Cloud Services Terms, this Divestment Clause shall override to the extent of the conflict or inconsistency.
Section I. Divestment
If Client divests a division, company or other entity within its corporate structure (a “Divested Entity”), then Client may continue to allow such Divested Entity use of the Cloud Services, the Platform and the Solution provided under the Agreement subject to the following terms and conditions:
- the Divested Entity is not a competitor of beqom in the performance and compensation management software industry;
- Client shall endeavour to provide beqom with not less than ninety (90) days’ prior written notice of any proposed divestment as the circumstances permit (including taking into account confidentiality obligations and subject to Client’s reasonable business judgment);
- Client may make an Apportionment (as that term is defined below) to the Divested Entity and the Divested Entity shall be entitled to continue to enjoy the benefit of such Apportioned Cloud Services provided by beqom which Client is receiving pursuant to this Agreement until the earlier of the expiry or termination of the Agreement, the respective Order Form, or the execution of a separate agreement between the Divested Entity and beqom as contemplated under Subsection (d). “Apportionment” means any apportionment as between Client and the Divested Entity, of (i) the right to receive all or part of the Cloud Services; and (ii) payment of any corresponding fees by Client to beqom, as applicable, made by Client for the purposes of this Section 18.11 and “Apportioned” shall be construed accordingly;
- Without prejudice to the preceding provisions of Subsection (c), to the extent required by the Divested Entity, beqom shall provide the Apportioned Cloud Services to the Divested Entity by way of a separate agreement subject to the Divested Entity and beqom reaching agreement on the Cloud Services to be provided by beqom to the Divested Entity. Following from the separate agreement being concluded between the Divested Entity and beqom, the Subscription Fees payable by Client will be adjusted commensurately by removing that portion of the Subscription Fees relevant to the Apportioned Cloud Services which will then be allocated and adjusted, if necessary, to the Divested Entity;
- The Divested Entity will not be entitled to enforce the Agreement against beqom until such time as the separate agreement has been concluded pursuant to Subsection (d);
- Client shall be responsible for compliance by such Divested Entity with the terms and conditions of the Agreement, including payment of any associated fees until such time as a divestment agreement has been signed with the Divested Entity. Upon expiry or termination of the Agreement with Client, the Divested Entity shall not be entitled to the benefit of the Agreement or the Cloud Services save to the extent that beqom has agreed to provide the Cloud Services to the Divested Entity by way of the separate agreement.