Master Software as a Service Agreement
Table of Contents
Part I: General Terms
The General Terms apply at all times to the Cloud Services and Professional Services. The General Terms supplement the applicable Specific Terms. In the event of any conflict between the General Terms and the Specific Terms, the applicable Specific Terms shall prevail.
1. Definitions and Interpretation
1.1 Capitalized terms set forth in this Master Agreement have the meaning ascribed thereto in the Definitions Appendix.
1.2 Any other capitalized term not defined in the Order Form or any document referenced therein shall have the same meaning ascribed thereto in the Definitions Appendix.
1.3 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 The Master Agreement is structured so that individual Order Forms will be entered into by the Parties and such Order Forms are governed by and subject to this Master Agreement.
2.2 Each Order Form, unless otherwise agreed by the Parties, shall constitute a separate Agreement under this Master Agreement.
2.3 Client's Affiliates may enter into an Order Form for their own benefit. In such a case, a reference to Client in this Master Agreement shall be deemed a reference to the relevant Affiliate, unless the context in which the term "Client" is used in this Master Agreement suggests otherwise.
2.4 In the event of inconsistency or conflict among the documents comprising this Master Agreement, the following order of precedence shall apply unless otherwise provided in the applicable Order Form and to the extent of the conflict or inconsistency: A. with respect to the performance of Cloud Services: (1) the applicable Order Form, its exhibits or appendices related thereto; (2) the Cloud Services Terms; (3) the General Terms; (4) the Data Processing Agreement and related exhibits or appendices; (5) the Service Level Agreement; and (6) the Functionality Description; provided always that the terms of the Data Processing Agreement shall take precedence and govern with respect to the protection of Personal Data; B. with respect to the performance of Professional Services: (1) the applicable Order Form, its exhibits or appendices related thereto; (2) the Professional Services Terms; (3) the General Terms; (4) the Data Processing Agreement and related exhibits or appendices; and (5) the Statement of Work and its exhibits; provided always that the terms of the Data Processing Agreement shall take precedence and govern with respect to the protection of Personal Data;
3. Term and Termination
3.1 Term. Cloud Services and Professional Services are provided according to the relevant Term section of the Specific Terms.
3.2 Termination. Either Party may terminate the applicable Agreement at any time if (a) the other Party breaches any of its material obligations hereunder and fails to cure within thirty (30) days of receipt of written notice from the non-breaching party; or (b) the other Party becomes insolvent or bankrupt or ceases substantially all of its business; or (c) immediately by beqom if the period of a suspension in accordance with beqom’s right to suspend the Cloud Services hereunder exceeds thirty (30) days. Termination by either Party under this Section shall be without prejudice to such Party’s right to damages and other rights and recourse at law or otherwise.
3.3 All other provisions relating to the Parties’ right to terminate an Agreement and the effect of such termination are specified in the applicable Specific Terms.
4. Fees and Taxes
4.1 Fees and Payment. Client shall pay fees as stated in the relevant Order Form. If Client does not pay any fees in accordance with the terms of the Agreement then, in addition to any other available remedies, beqom may suspend Client's use of the applicable Cloud Service or the provision of Professional Services until payment is made. beqom shall provide Client with prior written notice before any such suspension. Any fees not paid when due shall accrue interest at the maximum legal rate. Purchase orders are for administrative convenience only.
4.2 Taxes. Fees and other charges imposed under an Order Form will not include Taxes, all of which will be for Client’s account. Client is responsible for all Taxes. Client must provide to beqom any direct pay permits or valid tax-exempt certificates prior to signing an Order Form. If beqom is required to pay Taxes, Client will reimburse beqom for those amounts and related reasonable costs paid or payable by beqom attributable to those Taxes that are due by Client.
4.3 Payment. Unless otherwise set forth in an Order Form, all amounts invoiced are due and payable within thirty (30) days of the invoice date.
4.4 No Set-off. Client shall have no right to withhold or reduce fees or set off any amount against fees owed for alleged defects in the Cloud Services, Professional Services or Deliverables.
5.1 Non-Disclosure. The Receiving Party shall: (a) maintain all Confidential Information of the disclosing party in strict confidence, taking steps to protect the Disclosing Party’s Confidential Information substantially similar to those steps that the Receiving Party takes to protect its own similar Confidential Information, which shall not be less than a reasonable standard of care; (b) not disclose or reveal any Confidential Information of the disclosing party to any person other than its personnel, officers, directors, auditors and legal advisers whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in this Section 5; (c) not use or reproduce any Confidential Information of the disclosing party for any purpose outside the scope of the Agreement; and (d) retain any and all confidential, internal or proprietary notices or legends which appear on the original and on any reproductions.
5.2 Confidential Information of either Party disclosed prior to execution of an Agreement are subject to the protections afforded hereunder.
5.3 Exceptions. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to or reliance upon the Disclosing Party’s Confidential Information, or is lawfully received free of restriction from a third Party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Master Agreement by the Receiving Party; (c) at the time of disclosure, was known to the Receiving Party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions.
5.4 Notwithstanding the foregoing, any services and Cloud Materials provided by beqom prior to the execution of the Agreement are the sole property and Confidential Information of beqom and shall be governed by this Master Agreement.
5.5 Return and removal. At the end of the Subscription Term or upon the effective termination date of the Cloud Services, the Receiving Party shall (and agrees to cause its permitted recipients to): (a) promptly cease all use of the Disclosing Party’s Confidential Information in its or its permitted recipients’ possession, custody or control; and (b) return or destroy of the Disclosing Party’s Confidential Information in the Receiving Party’s or its permitted recipients’ possession, custody or control to the Disclosing Party. Client’s obligation to return or destroy beqom Confidential Information does not apply to Deliverables that have been delivered to Client, unless the Agreement is terminated by beqom in accordance with Section 3.2. Notwithstanding the foregoing, retrieval and deletion of Client Personal Data and other Client Data hosted on the Platform are governed by the terms of the Data Processing Agreement.
5.6 Notwithstanding the foregoing and always subject to the specific return and deletion provisions applicable to Client Personal Data set out in the Data Processing Agreement:(a) a single copy of all written Confidential Information may be retained by the Receiving Party’s legal counsel solely for the purposes of determining its obligations hereunder; and (b) the Receiving Party shall not be obligated to return or destroy any Confidential Information that the Receiving Party is legally prohibited from returning.
5.7 Compelled Disclosure. The Receiving Party may disclose the Disclosing Party's Confidential Information to the extent required by court order or regulatory agency; provided that the Receiving Party required to make such a disclosure uses reasonable efforts to give the Disclosing Party reasonable prior notice of such required disclosure (to the extent legally permitted) and provides reasonable assistance in contesting the required disclosure, at the request and cost of the Disclosing Party; any proposed disclosure will be limited to the minimum amount of Confidential Information required to satisfy that disclosure obligation.
5.8 Survival. This Section 5 shall survive termination of the relevant Agreement for a period of five (5) years; provided that the Receiving Party’s obligations with respect to any Confidential Information that constitutes a trade secret shall survive termination for so long as such information qualifies as a trade secret under the law applicable to the Agreement.
5.9 Reference. Subject to Client prior written consent, beqom may issue press releases, show Client’s logo on its website in order to identify Client as a recipient of Cloud Services, and use Client's logo in sales presentations and marketing materials.
5.10 Statistical Information. beqom may perform Services Analyses and may make such Service Analyses results publicly available, provided such results do not incorporate Client Data, Personal Data and/or identify Confidential Information in a form that could serve to identify Client, any Client's Affiliate and/or any individual or include Client's company name and/or any Client Affiliate’s company name. beqom retains all Intellectual Property Rights in such Services Analyses.
5.11 Injunctive Relief. Each Party understands that the Confidential Information constitutes valuable business assets of the Disclosing Party and its disclosure may irreparably harm the Disclosing Party. In the event of breach or threatened breach of the terms of this Section 5, the Disclosing Party is entitled to seek injunctive relief and any other remedy available at law or equity.
6. Intellectual Property
6.1 Background Intellectual Property. Nothing in this Master Agreement or any Agreement shall affect the ownership by either Party of its Pre-Existing Intellectual Property.
6.2 beqom Intellectual Property. All rights, title, and interests in and to the Cloud Services, the Cloud Materials, the Deliverables (excluding any Client Materials or Client Data) as well as any derivative works thereof, and all Intellectual Property Rights embodied therein, including techniques, knowledge or processes of the Cloud Services and/or Cloud Materials (whether or not developed for Client), shall be the sole and exclusive property of beqom. Except for the limited subscription rights granted herein, Client has no right, title or interest in or to the Software or any Intellectual Property Rights in the Cloud Services.
6.3 Client Intellectual Property. Client owns and retains all right, title, and interest in and to Client Data, Client Materials and any Output. beqom shall have the right to use Client Pre-Existing Intellectual Property and Client Materials solely for the purpose of providing the Cloud Services or Professional Services to Client under the Agreement.
7. Third Party Claims
7.1 Indemnification by beqom. beqom shall defend (at its sole expense) Client against claims brought against Client by any third party alleging that Client’s use of the Cloud Services or the Deliverables, in accordance with the terms and conditions of the Master Agreement, constitutes a direct infringement or misappropriation of such third party’s an Intellectual Property Right. beqom will pay damages finally awarded against Client (or the amount of any settlement beqom enters into) with respect to such claims, and reasonable attorney’s fees. This obligation shall not apply if the alleged infringement or misappropriation results from use of the Cloud Services or Deliverables by Client in conjunction with any other software or service not supplied by or approved of by beqom.
7.2 beqom may, at its sole option and expense: (a) procure for Client the right to continue using the Cloud Services and Deliverables; or (b) replace or modify the Cloud Services or Deliverables to be non-infringing. If beqom provides written notice to Client that the foregoing options are not reasonably available, beqom or Client may terminate the relevant Agreement and beqom shall refund to Client all prepaid fees for the remainder of the term of the Agreement after the date of termination.
7.3 Defense and Settlement. The above indemnification obligations are conditioned on: (a) Client timely notifying the beqom in writing of any such claim, provided however that a Client’s failure to provide or delay in providing such notice shall not relieve beqom of its obligations under this Section 7 except to the extent such failure or delay prejudices the defense; (b) beqom having the right to fully control the defense of such claim; and (c) Client reasonably cooperating in the defense of such claim.
7.4 Any settlement of any claim shall be for money damages only and shall not include a financial or specific performance obligation on or admission of fault, guilt or liability by Client against beqom, provided however that beqom may settle such claim on a basis requiring beqom to substitute for the allegedly infringing Cloud Services or Deliverable(s) any alternative substantially equivalent non-infringing Cloud Service(s) or Deliverable(s). Neither Party shall undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation that is prejudicial to the other party’s rights.
7.5 THE PROVISIONS OF THIS SECTION 7 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF BEQOM AND ITS LICENSORS TO CLIENT, AND IS CLIENT'S SOLE REMEDY, WITH RESPECT TO THIRD PARTY CLAIMS COVERED HEREUNDER AND TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
8. Data Security
8.1 Certifications. beqom is certified for ISO 27001, ISO 27017, ISO 27018 and ISAE 3402/SOC-1 Type II. beqom shall maintain such certifications for the term of the Agreement.
8.2 Upon written request, beqom will provide at no cost to Client the then-current ISO certificates and ISAE assurance reports.
8.3 Security Measures. beqom shall (a) store and process Client Data strictly as necessary to carry out its obligations hereunder, and for no other purpose; (b) implement user identification and access controls designed to limit access to Client Data to Users.
beqom shall implement and maintain the technical, organizational and administrative security measures detailed in the beqom Technical and Organizational Measures to keep Client Data protected in accordance with the Data Processing Agreement.
8.4 Disaster Recovery. beqom shall maintain and follow a disaster recovery plan designed to maintain Client's access to the Cloud Services and to Client Data, and to prevent the unintended destruction of Client Data, which plan, unless otherwise specified herein, shall provide for no less than twice-daily back-ups of Client Data residing on the Platform.
8.5 Monitoring. beqom shall conduct regular testing of the systems and procedures outlined in beqom Technical and Organizational Measures. beqom shall promptly notify Client if any of the Client Data or electronic forms of Client's information is lost, becomes corrupted, is damaged or is deleted accidentally.
beqom may use tools, including but not limited to scripts, software and utilities to monitor and administer the Cloud Services and to help resolve Client’s Cloud Services requests. Such tools shall not collect, report or store any of Client Data residing in the service production environment, except as necessary to troubleshoot service requests or imminent or major security threats or incidents in the Cloud Services.
8.6 Penetration Tests. Once a year, Client is entitled to perform penetration tests to assess the security of the Platform. Such tests shall be carried out on a dedicated penetration test environment at Client's own expense and risk by a reputable independent cyber-security services supplier approved by beqom (such approval not to be unreasonably withheld or delayed). Client shall communicate to beqom the outcome of the tests and all detailed findings, if any. The scope and duration of the penetration tests and any specific provisions applicable thereto, will be subject to and governed by a separate agreement between the Parties.
Alternatively, Client may no more than once a year request, and beqom shall provide at no expense to Client, the results of beqom's own penetration tests performed by a reputable independent cyber-security services supplier.
9. Data Privacy
9.1 Compliance. Beqom and Client shall comply with the terms of the Data Processing Agreement.
9.2 Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of Client Data. beqom shall not be held liable, in any way, for the collection, use and generally for the processing of Client Data by Client.
9.3 Data Anonymisation. Client shall ensure anonymisation of Personal Data for testing operations to be carried out on the Platform.
9.4 Production Data. Client shall initiate the production data upload process by delivering production data to the data integration endpoints provided by beqom; the production data Client has delivered will then be uploaded to the production environment using the technical process signed-off by Client. Alternatively, Client may use the built-in grid data import feature of the Cloud Services to load the production data onto the Platform.
10.1 Direct Damages. SUBJECT TO SECTIONS 10.2 (EXCEPTIONS) AND 10.4 (SUPER CAP), AND WITHOUT PREJUDICE TO SECTION 10.3 (INDIRECT DAMAGES), UNDER NO CIRCUMSTANCES AND REGARDLESS OF THE NATURE OF ANY CLAIM SHALL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES OR SUPPLIER'S LICENSORS) BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY UNDER THE AGREEMENT FOR AN AMOUNT OF DIRECT DAMAGES IN EXCESS OF THE FEES PAID FOR THE APPLICABLE CLOUD SERVICE OR DELIVERABLE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE INCIDENT GIVING RISE TO SUCH LIABILITY.
10.2 Exceptions. THE ABOVE LIMITATION DOES NOT APPLY TO LIABILITY ARISING FROM: (A) DEATH OR PERSONAL INJURY CAUSED BY A PARTY’S NEGLIGENCE; (B) ANY BREACH OF THE PROVISIONS UNDER THE INTELLECTUAL PROPERTY AND LICENSE SECTIONS; OR(C) FRAUD, WILFUL MISCONDUCT OR FRAUDULENT MISREPRESENTATION.
10.3 Indirect Damages. SUBJECT TO SECTION 10.4, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, PERSONAL DATA, USE OR OTHER ECONOMIC ADVANTAGE), ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, NEGLIGENCE, TORT, STATUTORY DUTY OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THE AGREEMENT.
10.4 Super cap. THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ALL DAMAGES, WHETHER DIRECT, INCIDENTAL, CONSEQUENTIAL OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH (I) A SECURITY INCIDENT GIVING RISE TO A PERSONAL DATA BREACH (AS DEFINED IN THE DATA PROCESSING AGREEMENT); OR (II) THE UNAUTHORIZED USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IN BREACH OF SECTION 5 (CONFIDENTIALITY), SHALL NOT EXCEED THREE TIMES (3X) THE FEES PAID OR PAYABLE FOR THE APPLICABLE CLOUD SERVICE OR DELIVERABLE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE INCIDENT THAT GAVE RISE TO LIABILITY.
10.5 THESES LIMITATIONS SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
10.6 The essential purpose of this provision is to limit the potential liability of the Parties arising from the Agreement. The Parties acknowledge that the limitations set forth in this Section 10 are integral to the amount of fees charged in connection with the performance of the Cloud Services and Professional Services and that, where beqom was to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher. The Parties further acknowledge that the liability limitations set forth in this Section 10 include any claims against employees of, Subcontractors of, or any other persons authorized by, either Party.
11.1 beqom will, at its own expense, carry and maintain adequate insurance coverage and minimum coverage limits for its business as required by any applicable law or regulation and commensurate with its obligations under the applicable Agreement.
11.2 beqom shall maintain all insurance provided for in this Section at all times throughout the term of the Agreement and the data retrieval period set out in Section 19.3.
12.1 Cloud Services. beqom may use Subcontractors to provide all or part of the applicable Cloud Services under the Agreement. beqom is responsible for breaches of the Agreement caused by its Subcontractors in relation to the Cloud Services.
12.2 Professional Services. Subject to Client’s prior written consent, beqom may hire Subcontractors to perform beqom's duties or otherwise assist beqom to provide Professional Services to Client, including, without limitation, any data migration, configuration, implementation and custom code development processes. beqom shall be responsible for the performance of the Professional Services of such Subcontractors to the same extent as beqom is liable for its own personnel.
12.3 Sub-processing. Subcontractors sub-processing Client Personal Data in connection with Cloud Services are specified in the Subprocessors List. Client may object to new subprocessors in accordance with the procedure provided under the Data Processing Agreement. Subcontractors sub-processing Client Personal Data in connection with Professional Services are specified in the Data Processing Form.
Beqom obligations and responsibilities with respect to its subprocessors are set forth in the Data Processing Agreement.
13.1 During the term of the Agreement and for a period of one (1) year thereafter, beqom shall cooperate with Client to provide any information reasonably required by Client due to an audit conducted by an Agreed Auditor (as defined below) to demonstrate beqom’s compliance with the terms of the Agreement, including, to the extent necessary, allowing Client to conduct any required audit or inspection, upon prior written notice to beqom, provided that the Agreed Auditors are not satisfied with beqom’s ISO and ISAE/SOC reports as provided by beqom. Such audit will be limited to audits required by regulators, governmental authorities, internal auditors of Client or external auditors (collectively, the “Agreed Auditors”), and will be at Client’s expense. Client shall reimburse beqom’s reasonable costs for any time expended for any such assistance beyond three (3) men/days (8 hours per day) per audit per year at beqom’s then-current audit rates.
13.2 Information and audit rights of Client only arise under this section to the extent that the Data Processing Agreement does not otherwise give Client information or audit rights in connection with the Cloud Services.
14.1 Relationship of the Parties. The Parties to the Agreement are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties is created by the Agreement.
14.2 Notices. Any notice, report, approval or consent required or permitted hereunder shall be in writing and will be deemed to have been given: (A) for termination or breach-related matters (i) upon receipt or refusal if delivered personally, by courier or by express service, (ii) five business days if mailed by registered or certified mail postage prepaid, or (iii) the next business day if sent by reputable overnight courier, to the respective addresses of the Parties set forth in the Preamble above; and (B) for all other matters when delivered by email.
14.3 Governing Law and Jurisdiction. Without regard to any conflict of laws principles: (a) if Client is located in North or South America, the contracting party is beqom North America, Inc., a Delaware corporation, and the Agreement will be interpreted and governed in accordance with the laws of the State of Delaware, United States; or (b) if Client is located outside of North or South America, the contracting party is beqom SA, a Swiss company, and the Agreement will be interpreted and governed in accordance with (i) the laws of England and Wales, if Client has its seat in the United Kingdom, India, Israel or South Africa, (ii) the laws of Germany if Client has its seat in Germany, (iii) the laws of France if Client has its seat in France, and (iv) the laws of Switzerland for all other Clients. The United Nations Convention on Contracts for the International Sales of Goods will not apply.
All disputes arising out of or in relation to an Agreement shall be submitted to the exclusive jurisdiction of the competent courts of: (a) the New Castle County in the State of Delaware when the laws of the State of Delaware apply; (b) London when the laws of England and Wales apply; (c) Frankfurt a/Main when German laws apply; (d) Paris when French laws appl; and (e) Geneva when Swiss laws apply.
Each Party waives any right it may have to a jury trial for any claim or cause of action arising out of or in relation to the Agreement.
Nothing in this Section 14.3 shall restrict a party’s right to bring an action (including any motion for injunctive relief) against the other party in the jurisdiction where the other party’s place of business is located.
Governing laws and jurisdictions applicable to cross-border transfer of Personal Data are specified in the Data Processing Form.
14.4 Export. Each Party is responsible for complying with import, export and economic sanction laws and regulations that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users.
14.5 Force Majeure. Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing Party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance. Each Party shall use reasonable efforts to mitigate the effect of a force majeure event and to perform its obligations under the Agreement as soon as reasonably possible when the force majeure event ends. If such event continues for more than thirty (30) days, each Party may cancel unperformed Cloud Services and/or Professional Services upon written notice. This section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures.
14.6 Assignment. Neither Party shall, without the other Party's prior written consent, assign, delegate, pledge or otherwise transfer partially or totally the Agreement to any party; such authorisation not to be unreasonably withheld. Notwithstanding the foregoing, either Party may assign one or several Agreements or any rights and/or obligations thereunder upon written notice and without consent of the other Party: (a) subject to Section 14.7 to any successor pursuant to a merger, consolidation, sale of all or substantially all of its assets, or all or a substantial portion of the business to which the Software or the Cloud Services relates; or (b) to an Affiliate; provided the assignee agrees in writing to be bound by the obligations of the assignor contained in the relevant Agreement and, in the case of an assignment to an Affiliate, the assigning Party shall remain liable for all of the assigned obligations and liabilities.
14.7 Change of Control of Client. In the event that ownership of or control over fifty percent (50%) of the voting stock of Client is acquired directly or indirectly by any person, corporation or other business entity (“Change of Control”) that is a competitor of beqom in the compensation or continuous performance management software industry ("Change of Control"), then beqom shall be entitled to terminate all the Agreements immediately upon written notice to Client. Client shall provide at least ninety (90) days’ prior written notice of any such change of control.
14.8 Divestment. If Client divests a division, company or other entity within its corporate structure, (a “Divested Entity”), then the Divestiture Terms shall apply.
14.9 Modification and Waiver. The Agreement may be modified solely in writing signed by both Parties. A delay or failure to exercise or partially exercise any right under the Agreement does not operate as a waiver, nor will it preclude future exercise of that right or permit, or sanction any subsequent breach of any term or condition.
14.10 Severability. If any term or provision hereof shall be held by a court of law to be invalid, unenforceable or illegal, such holding will not invalidate or render unenforceable any other provision hereof, and the remaining provisions will not be impaired thereby.
14.11 Survival. Any provision, which requires performance after the termination or expiration of an Agreement, which by their nature are intended to survive or relate to events that may occur after the termination or expiration thereof, will survive the termination or expiration of such Agreement.
14.12 No Third-Party Beneficiary. No provisions hereunder are intended or shall be construed to confer upon or give to any person or entity other than beqom and Client any rights, remedies or other benefits.
14.13 Entire Agreement. The Agreement and any information or documents which are incorporated therein by reference, are the entire agreement between the Parties with respect to Client’s purchase of the Cloud Services or Professional Services, and supersedes and replaces any previous communications, representations or agreement, oral or written. Any different or additional terms and conditions provided by Client to beqom are considered material alterations to the Agreement (and of the Order Form), expressly rejected and will not be binding upon beqom. Any reference to additional terms stated in a purchase order or any associated ancillary document issued by Client is solely for Client’s convenience in record keeping, and no such reference or any delivery of Cloud Services or Professional Services to Client following receipt of any purchase order shall be deemed an acknowledgment of or agreement to any terms or conditions associated with any such purchase order or in any way be deemed to modify, alter, supersede or supplement the Agreement.
Part II: Cloud Services Terms
These terms and conditions (“Cloud Services Terms”) govern the order(s) entered into between Client and beqom for the provision of Cloud Services.
15.1 Licence Grant. beqom hereby grants to Client, its Affiliates and their respective Users a limited, non-transferable and non-exclusive license to remotely access the Platform and use the Cloud Services solely for Client’s own internal business purposes as permitted by and subject to the Agreement. There is no transfer from beqom to Client or its Affiliates of any proprietary right or interest in the Cloud Services, the Platform or the Cloud Materials. beqom and its licensors reserve all other rights.
15.2 Extent. Users will access the Platform via the Internet; Client acknowledges that beqom has no obligation to provide copies of any Software to Client as part of the Cloud Services. Client acknowledges that Users’ right to access and use the Cloud Services shall not exceed the scope and extent of the rights granted in the Agreement or the duration of the Subscription Term.
15.3 Restrictions. Client shall be responsible for the acts and omissions of its Users and Affiliates' Users as if they were the acts and omissions of Client.
Client shall not, and shall procure that its Affiliates and their respective Users do not: (a) make the programs or materials resulting from the Cloud Services available in any manner to any third party for use in the third party’s business operations; (b) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Cloud Materials, (c) access or use the Cloud Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to the Cloud Services; (d) copy, reproduce, distribute, download, display, post or transmit in any form or by any means part of the Cloud Services or of the Cloud Materials, except as expressly provided under these Cloud Services Terms; (e) sublicense, license, sell, lease, rent or otherwise make the Cloud Services available to any third party other than as expressly permitted under these Cloud Services Terms; (f) use the Cloud Services, the Platform and/or the Cloud Materials in any way that is unlawful, illegal, fraudulent or harmful or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity. Performance benchmarking without beqom’s prior written consent is expressly prohibited.
15.4 Environments. The Platform consists of three (3) environments: development, test and production. Subject to the payment of additional fees, Client may order additional environments at any time.
15.5 Access Conditions. Client shall be solely responsible for authorizing access to the Platform and assigning roles, unique passwords and usernames to its Users via Client’s own identity provider system in order to permit Users to remotely access and use the Cloud Services solely for Client’s own internal business purposes as permitted by the Agreement. Client shall be solely responsible for implementing and managing user identification and access controls to Client Data and Client’s Confidential Information on Client’s own local network and equipment, and other equipment under Client’s control (whether local or cloud-hosted equipment or mobile devices). Client shall use commercially reasonable efforts to prevent unauthorized access to or use of the Cloud Services by its Users and shall promptly notify beqom of any unauthorized access or use of the Cloud Services it may become aware of and any loss, theft or unauthorized use of any User’s password or name and/or account numbers.
15.6 User access credentials issued to access or utilize the Cloud Services cannot be shared or used by more than one individual at a time, provided however, a User’s access rights may be transferred from one individual to another if the original User is removed from the Cloud Services, no longer requires, or is no longer permitted access to or use of the Cloud Services.
16. Support Levels and Availability
16.1 beqom shall provide operational Support Services in compliance with the Service Level Agreement.
17. Client Responsibilities
17.1 Subject to Section 5 (Confidentiality), Client grants to beqom a worldwide, revocable, royalty-free license to host, copy, transmit and display Client Data and to use Client Data for the sole purpose of and only to the extent necessary for beqom to perform the Cloud Services for the duration of the Subscription Term.
17.2 Client shall be solely responsible for: (a) all activities conducted under its User logins and for its Users' compliance with these Cloud Services Terms; (b) the security of its own information systems and of its Internet connections from its systems to the entry point of the Platform; and (c) the content of the Client Data supplied by it.
17.3 Client is solely responsible for determining the suitability of the Cloud Services for Client's business and complying with any regulations, laws, or conventions applicable to the Client Data and Client's use of the Cloud Services. Client agrees not to submit to, or store in the Cloud Services, any Personal Data unless Client has complied with its obligations under Section 17.
18. Temporary Suspension
18.1 Circumstances. beqom may, in its reasonable determination, temporarily suspend access to the Cloud Services or a portion thereof, if and to the extent beqom can substantiate that the continued use of the Cloud Services by Client may result in breach of the Cloud Services Terms or infringement of rights of third parties, upon prior written notice to Client as the circumstances permit.
18.2 Effect of Suspension. If beqom suspends Client’s right to access or use any portion or all of the Cloud Services: (a) Client remains responsible for all fees and charges it has incurred through the date of suspension; (b) Client remains responsible for any applicable fees and charges for any Cloud Services to which Client continues to have access; and (c) beqom will not erase any of Client Data as a result of the suspension, except as otherwise expressly permitted by the Agreement. beqom’s right to suspend Client’s right to access or use the Cloud Services is in addition to any other right to terminate the Cloud Services pursuant to Section 19.2 (Termination).
19. Subscription Term and Termination
19.1 Term. Cloud Services are provided for the Subscription Term unless earlier suspended or terminated in accordance with the Agreement. Upon expiry of the Initial Subscription Period, the subscription shall automatically renew for subsequent one (1) year terms (each a “Renewal Period”) unless Client provides beqom with written notice no later than ninety (90) days prior to the end of the then-current Subscription Term of its intention not to renew the Cloud Services.
19.2 Termination. The applicable Agreement may be terminated by either Party at any time if (a) the other Party breaches any of its material obligations under these Cloud Services Terms or any Order Form and fails to cure within thirty (30) days of receipt of written notice from the non-breaching party or (b) immediately by beqom for breach of Section 15 (License).
19.3 Data Retrieval. Within thirty (30) days after the termination of all the Cloud Services or expiry of the Subscription Term, Client may request beqom to provide Client with a copy of all Client Data then under beqom's control in a generally accepted industry-standard electronic format (e.g. csv, xls). Client agrees and acknowledges that beqom has no obligation to retain Client Data beyond that period and that Client Data shall be irretrievably deleted after thirty (30) days following the termination of the Cloud Services or expiry of the Subscription Term. beqom shall not be liable to Client nor to any third party for any termination of Client’s access to the Cloud Services or for deletion of Client Data in compliance with this Section.
20. Fees and Payment
20.1 Subscription Fees. Client shall pay to beqom the Cloud Services fees in the amount and within the time limits set forth in the Agreement. Fees will be fixed for the Initial Subscription Period. Subscription Fees for Renewal Periods will be invoiced annually in advance approximately seventy (70) days prior to the start of each subscription year, unless otherwise set forth in the Order Form. Except as set forth herein, all fees are non-cancellable and non-refundable.
20.2 Additional Payees or Scope(s). Client may add additional Payees or Scopes during the Subscription Term by executing an additional Order Form which shall then become an integral part of the Agreement. The term of each additional Order Form shall be coterminous with the then-current term of the Agreement and all additional fees shall be prorated accordingly. beqom shall invoice Client in arrears for the additional fees within fifteen (15) days following the end of the month to which such additional fees apply.
20.3 Price Revision. Any increase of the fees for each Renewal Period shall not exceed, at a maximum, the Fees due for the immediately preceding twelve month period multiplied by: (a) for Clients having their seat in France, the Syntec; and (b) for other Clients, the Local Consumer Price Index. beqom may increase the Fees per remaining Scope(s) if Client elects to significantly reduce any Cloud Service or volume of Payees for any Renewal Period.
21.1 Cloud Services Warranty. beqom warrants that: (a) the Solution will, for the Subscription Term, perform in all material respects in accordance with the Functionalities and the Documentation; (b) such Functionalities will not be materially decreased during the Subscription Term; and (c) the Software will be free of Harmful Code.
SUBJECT TO SECTIONS 21.2 AND 21.3, CLIENT'S SOLE AND EXCLUSIVE REMEDY, AND BEQOM'S ENTIRE LIABILITY FOR BREACH OF THE LIMITED WARRANTY IN THIS SECTION 21.1, SHALL BE CORRECTION OF THE WARRANTED NON-CONFORMITY. IF, AFTER USING REASONABLE COMMERCIAL EFFORTS, BEQOM FAILS TO CORRECT THE DEFICIENT CLOUD SERVICE TO ACHIEVE IN ALL MATERIAL RESPECTS THE FUNCTIONALITY DESCRIBED IN THE DOCUMENTATION WITHIN THREE MONTHS OF THE NOTIFICATION OF THE NON-CONFORMITY BY CLIENT, CLIENT SHALL BE ENTITLED TO TERMINATE THE AGREEMENT AND RECEIVE A PRO-RATA REFUND OF THE SUBSCRIPTION FEES PAID UNDER THE APPLICABLE ORDER FORM FOR ITS USE OF THE CLOUD SERVICES FOR THE TERMINATED PORTION OF THE CLOUD SERVICES TERM.
21.2 The foregoing warranty shall not apply to the extent: (a) the Cloud Services are not being used in accordance with these Cloud Services Terms; or (b) any non-conformity is caused by any third-party products, content or service (other than third party technology that may be appropriate or necessary for use with the Cloud Services or the Platform as specified in the Functionalities or the Documentation, as applicable, being accessed through the Cloud Services that are identified as third party products, content or service.
21.3 Notification. Client shall promptly inform beqom of any non-conformity within thirty (30) days of Client's discovery thereof.
21.4 THE WARRANTIES STATED IN THIS WARRANTIES SECTION ARE THE SOLE WARRANTIES AND REMEDIES FOR CLIENT AND EXCLUSIVE OBLIGATIONS OF BEQOM RELATED TO THE CLOUD SERVICES TO BE PROVIDED TO CLIENT PURSUANT TO THESE CLOUD SERVICES TERMS AND ANY ORDER FORM. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
Part III: Professional Services Terms
These terms and conditions (“Professional Services Terms”) govern the order(s) entered into between Client and beqom for the provision of Professional Services.
22. Scope of Services
22.1 Subject to the terms and conditions of these Professional Services Terms, beqom will provide Client with Professional Services as set forth in the applicable Agreement.
23. Provision of Services
23.1 beqom shall comply and shall cause its personnel to comply with all personnel, facility, safety and security policies, rules and regulations and other instructions of Client when performing Professional Services at a Client facility or accessing any Client systems or data.
23.2 If any Professional Service, in whole or in part, cannot be provided by beqom due to a Client issue and Client fails to provide beqom with reasonable advance notice, or as a result of Client's failure to fulfill any of its obligations under Section 26 (Client Responsibilities), the time agreed to be spent by beqom resources on such Professional Services will be billed to Client according to beqom's standard hourly consulting fees.
24. Professional Services Term and Termination
24.1 Term. Professional Services are provided for the period stated in the applicable Order Form or upon completion of the Professional Services in accordance with the Agreement unless terminated earlier by either party in accordance with this Section 24.
24.2 Client Success packages subscriptions or other yearly recurring Professional Services are provided for the Initial Period stated in the relevant Order Form and shall be coterminous with the Initial Subscription Period for Cloud Services. Upon expiry of the Initial Period, the subscription shall automatically renew for subsequent one (1) year terms (each a “Renewal Period”) unless Client provides beqom with written notice no later than ninety (90) days prior to the end of the then-current Subscription Term of its intention not to renew such Professional Services.
24.3 Termination. Without prejudice to the right to terminate under Section 3.2, either Party may terminate a Professional Services Order Form (excluding fixed-price Professional Services, Client Success packages subscriptions or other yearly recurring Professional Services) upon 90-days prior written notice to the other Party. The termination of any particular Professional Service in accordance with this Section 24 shall not cause or result in termination of any other Professional Services ordered under the same Order Form nor reduce the Client’s liability for payments to beqom.
24.4 Termination by either Party under this Section 24 shall be without prejudice to such Party’s right to damages and other rights and recourse at law or otherwise.
24.5 Effect of Termination. Client shall be liable for payment of all undisputed costs, fees and expenses up to the effective date of termination for (i) any completed, partially completed or scheduled Professional Services from any phase or milestone; and (ii) any reasonable committed costs or expenses; and (iii) any non-refundable travel costs and related expenses.
25. Change Requests
25.1 During the term of the Agreement, either Party can request changes to a Statement of Work (“Change Request”).
25.2 Both Parties agree to act in good faith to address and mutually agree to any requested Change Requests within a reasonable period of time. beqom will not be required to perform under a Change Request until agreed to and signed by the Parties.
26. Client Responsibilities
26.1 General. Client is responsible for timely providing management decisions, requested approvals, as well as accurate and complete Client Dependencies in accordance with the applicable Statement of Work, and for making all other necessary arrangements to allow beqom to perform the Professional Services. Subject to Section 10 (Liability), Client shall be solely responsible for any delays, additional costs, or other liabilities caused by or associated with any deficiencies in performing its obligations under this Section 26.
26.2 Client Personnel. Client shall provide and make available all Client personnel that beqom reasonably requires in connection with the performance of the Professional Services and as may be further specified in an applicable Statement of Work.
26.3 Client shall appoint a contact person to supply beqom with any necessary or relevant information and who shall have the authority to make decisions or obtain decisions from others expeditiously.
26.4 Client Premises. Without prejudice of Supplier obligations under Section 23.1, if Professional Services are performed at Client's site, Client agrees to provide necessary access to its site including, but not limited to, appropriate access to Client premises, computer systems and other facilities.
27.1 Satisfaction with Personnel. If Client is dissatisfied with the material performance of an assigned beqom’s or beqom Subcontractor’s consultant, Client shall promptly report such dissatisfaction to beqom in writing and may request a replacement. beqom shall use its reasonable discretion to provide any such replacement personnel subject to staffing availability.
27.2 Non-Solicitation. Neither Party shall knowingly solicit or hire any of the other party’s employees involved in a Statement of Work during the term of the applicable Agreement and for a period of six (6) months from the date of termination thereof, without the express written consent of the other Party. This provision shall not restrict the right of either Party to recruit generally in the media.
28. Fees and Expenses
28.1 Fees. Subject to Section 28.2, Client shall pay to beqom the fees for Professional Services in the amount and within the time limits set forth in the applicable Agreement. Unless otherwise provided in the applicable Agreement, Professional Services fees are calculated on a time and materials basis according to the daily rates set out therein.
28.2 Fees for Client Success packages subscriptions or other yearly recurring Professional Services will be fixed for the Initial Period. Fees for Renewal Periods will be invoiced annually in advance approximately seventy (70) days prior to the start of each subscription year, unless otherwise set forth in the Order Form. Except as set forth herein, all fees are non-cancellable and non-refundable. Any increase of the fees for each Renewal Period shall not exceed, at a maximum, the fees due for the immediately preceding twelve month period multiplied by: (a) for Clients having their seat in France, the Syntec; and (b) for other Clients, the Local Consumer Price Index.
28.3 Expenses. Client shall reimburse beqom for all reasonable, pre-approved (by Client in writing) and appropriately documented travel and related expenses incurred by beqom in performing Professional Services.
29.1 Acceptance and the occurrence of the Acceptance Date for each Deliverable or set of Deliverables detailed in the Statement of Work is subject to the successful carrying out by Client of the Acceptance Tests in accordance with the relevant criteria agreed with beqom prior to commencement of the Acceptance Tests.
29.2 Client undertakes to carry out all Acceptance Tests promptly and fairly. Client will be required to sign a Certificate of Acceptance upon successful completion of the Acceptance Tests. Client will not, without cause, unduly delay the signature of the Certificate of Acceptance.
29.3 If any of the Deliverables fails to pass the Acceptance Tests, beqom shall use its reasonable efforts to remedy the Defect(s) giving rise to such rejection and shall notify Client as soon as beqom considers that the Defect(s) has or have been remedied and the affected Deliverables are ready for re-testing. Repeat tests will be carried out within a reasonable time.
29.4 In the event the repeat Acceptance Tests are not recorded as successful pursuant to Section 29.3, Client may, by written notice to beqom within two (2) working days of completion of repeat tests, choose: (a) without prejudice to its other rights and remedies, to extend the mutually agreed testing period stated in the Statement of Work, during which beqom shall use reasonable efforts to remedy the Defect(s) which caused the Acceptance Tests to be recorded as unsuccessful; or (b) terminate the applicable Professional Services Order Form in accordance with Section 24.3 (Termination).
29.5 Client shall be deemed to have accepted the Deliverables upon the first to occur of any of the following: (a) it has been demonstrated that the Deliverables have passed the Acceptance Tests and Client issues a Certificate of Acceptance; (b) Client uses the Deliverables, or any part of them, other than for testing purposes; (c) if Client has notified beqom of any Defect(s) and on agreement with Client that beqom has repaired the Defect (s) or that no such Defect(s) in fact exist(s); or (d) a period of ninety (90) days has passed since the Deliverables were submitted to Client for testing.
30.1 Professional Services Warranty. beqom warrants that (a) it and each of its personnel has the necessary knowledge, skills, experience, qualifications, and resources to perform the Professional Services specified in the applicable Statement of Work; and (b) the Professional Services will be performed for and delivered to Client in a diligent, workmanlike and professional manner consistent with generally accepted industry practices.
30.2 Deliverables Warranty. beqom warrants that for ninety (90) days (the “Warranty Period”) following the Final Acceptance Date the Deliverables will conform in all material respects with the Specifications for those Deliverables. beqom’s ability to successfully perform hereunder is dependent upon Client's provision of timely information, access to resources, and participation.
30.3 Warranty Claims. Client shall notify beqom of the alleged warranty breach in writing within thirty (30) days: (a) from the Acceptance Date of a single Deliverable; and/or (b) from the end of the Warranty Period.
30.4 The notice shall include a precise description of the problem and all relevant information reasonably necessary for beqom in order to rectify such breach. Provided Client has notified beqom in accordance with this Section of a warranty breach and beqom validates the existence of such breach, beqom will, at its option, (a) re-perform the applicable Professional Services, or (b) deliver the corrected Deliverable, or (c) provide a credit note or refund the fee paid for the specific non-conforming Deliverable if the Deliverable cannot be corrected.
30.5 Disclaimer. THE WARRANTIES STATED IN THIS WARRANTIES SECTION ARE THE SOLE WARRANTIES AND REMEDIES FOR CLIENT AND EXCLUSIVE OBLIGATIONS OF SUPPLIER RELATED TO THE PROFESSIONAL SERVICES AND DELIVERABLES TO BE PERFORMED FOR AND DELIVERED TO CLIENT PURSUANT TO THE AGREEMENT AND ANY SERVICE REQUEST. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.