General Terms and Conditions
Software as a Service (SaaS)
1 DEFINITIONS
“Authorized User” means any individual to whom the Customer rightfully grants access authorization to use the SaaS
“Confidential Information” means
· With respect to the Customer: (i) the Customer Data, (ii) implementation plans, and (iii) financial information, and
· With respect to Dataserver: (i) the SaaS, Documentation, SaaS Materials and analyses, and (ii) information regarding research and development, product offerings, pricing and availability.
· Confidential Information of either Party also includes information which the Party protects against unrestricted disclosure to others that (i) the Party or its representatives designates as confidential at the time of disclosure, or (ii) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure.
“Consulting Services” means professional services, such as implementation, configuration, support, custom development and training, performed by Dataserver’s employees or subcontractors.
“Customer Data” means any content, materials, data and information that Authorized Users enter into SaaS, including data that Customer derives from its use of and stores in the SaaS (e.g. Customer-specific reports). Customer Data and its derivatives will not include Dataserver’s Confidential Information or statistics based on the Customer’s usage of the services.
“Documentation” means Dataserver’s then-current technical and functional documentation regarding the SaaS, which is made available to the Customer.
“Dataserver Policies” means the operational guidelines and policies applied by Dataserver to provide and support the SaaS.
“GDPR” means the European Union’s General Data Protection Regulation.
“Other Relevant Data Protection Laws and Regulations” means data protection laws and regulations that apply to the Customer’s data, in addition to GDPR.
“SaaS” (Software as a Service) means any distinct, subscription-based, hosted, supported and operated on- demand solution provided by Dataserver.
“SaaS Materials” mean any materials provided or developed by Dataserver (independently or in cooperation with the Customer), including any materials delivered in connection with any support or Consulting Services to the Customer. SaaS Materials do not include the Customer Data or Customer Confidential Information.
‘Written Notification’ means communications sent by email to the representative of the Parties.
2 GENERAL REQUIREMENTS
2.1 Co-operation
Dataserver and the Customer needs to co-operate on a flexible basis to successfully implement and use the services.
All individual requirements of the Customer relating to the services needs to be clearly communicated to Dataserver.
Dataserver will clearly communicate to the Customer the preparations and resources needed to deliver the services, which the Customer is obliged to facilitate. Moreover, the Customer shall, without undue delay, respond swiftly to reasonable requests for information and assistance.
Any use by the Customer of the SaaS and data must be in accordance with laws, statutes, regulations and instructions from Dataserver. The Customer must refrain from any use of the SaaS, which is not in accordance with the Agreement.
2.2 Responsible business
The Parties will comply with the UN Global Compact’s ten principles in the areas of human rights, labour, the environment and anti-corruption.
3 THE CUSTOMER’S RIGHTS AND RESPONSIBILITIES
3.1 Grant of Rights
Dataserver grants to the Customer a limited, non-exclusive, non-transferable right to use the SaaS (including its implementation and configuration) as long as the Customer is an active paying subscriber. Any use is solely for the Customer’s internal business operations, within the country or region stated in the Agreement.
3.2 Authorized Users
The Customer has the right to permit a number of Authorized Users to use the SaaS as specified in the Agreement.
The Customer may increase or reduce the number of
Authorized Users, according to the terms and conditions in the Agreement.
Access credentials for the SaaS may only be used by one individual but may be transferred, by notice, from one individual to another should the original user no longer be permitted access.
The Customer is responsible to control the use of SaaS and will be held liable for any breaches caused by the Customer or Authorized Users.
3.3 Prohibited Use
With respect to the SaaS, The Customer will not:
a. Disassemble, decompile, reverse-engineer, copy, translate or make derivative works.
b. Transmit any content or data that is unlawful or infringes any intellectual property rights.
c. Circumvent or endanger its operation or security.
d. Use the SaaS to transmit code, files, scripts, agents, or programs intended to do harm, including viruses.
e. Interfere with or disrupt the integrity or performance of the SaaS.
f. Attempt to gain unauthorized access to the SaaS or its related systems or networks.
g. Permit direct or indirect access or use the SaaS in a way that circumvents contractual usage limits.
h. Access any of the SaaS to build a competitive product.
i. Attempt to disable any element of the SaaS without written consent from Dataserver.
j. Resell, sublicense, rent, distribute or lease the SaaS to 3rd parties.
3.4 User’s Security awareness
The Customer will maintain reasonable security standards for its Authorized Users’ use of the SaaS.
3.5 Suspension of SaaS
Dataserver may suspend the use of the SaaS if continued use may result in material harm to the SaaS or its users. Any possible suspension will be promptly notified. Dataserver will take all reasonable steps to protect user’s data during the suspension and will limit the suspension in time and scope as much as reasonably possible under the circumstances.
3.6 Third Party Web Services
The SaaS may include integrations with web services made available by third parties (other than Dataserver or its Affiliates) that are accessed through the SaaS and subject to terms and conditions with those third parties. These third-party web services are not part of the SaaS and the Agreement does not apply to them.
3.7 Mobile Access to SaaS
Authorized Users may access parts of SaaS functionality through mobile applications obtained from third-party websites such as Android or Apple app store. The use of mobile applications may be governed by the terms and conditions presented upon download or access to the mobile application and not by the terms of the Agreement.
4 RESPONSIBILITIES OF DATASERVER
4.1 Services
Dataserver will provide access to the SaaS, other initially agreed services and any possible subsequent services ordered in accordance with this Agreement.
4.2 Security
Dataserver will use reasonable security technologies and will implement technical and organizational measures to secure personal data processed in accordance with the Agreement.
4.3 Good Industry Practices
Dataserver warrants that it will provide the SaaS with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of the SaaS.
Additional policies of Dataserver are available to the customer upon request.
5 FEES AND TAXES
If the Customer is questioning the correctness of any invoice, the Customer must send a Written Notification without undue delay, and at the latest within 14 calendar days from the invoice date. The notification must contain an explanation of the reason for the questioning. If the Customer has failed to give Dataserver such notice, the Customer is obliged to pay the invoice within due date. Lack of such notice (in time) does, however, not prevent the Customer from disputing the correctness of any invoice and claim a refund or a reduction of later invoices.
Unless otherwise stated, fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value-added, sales taxes, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively “Taxes”) or bank charges levied by Customer’s bank and/or any intermediary bank. The Customer is responsible for paying all Taxes and bank charges associated with the Customer’s purchase and use of SaaS. If Dataserver has the legal obligation to pay or collect Taxes and/or incur bank charges for which the Customer is responsible, the appropriate amount shall be invoiced by Dataserver to the Customer and the Customer will pay that amount unless the Customer has provided Dataserver with a valid tax exemption certificate authorized by the appropriate taxing authority or admissible evidence that the bank charges
were not associated with the Customer’s purchase and use of the SaaS.
6 LIMITATION OF LIABILITY
6.1 Liability Cap
Subject to Sections 6.2 the maximum aggregate liability of either Party (or its respective Affiliates or subcontractors) to the other Party or any other person or entity for all events (or series of connected events) arising in any twelve-month period will not exceed the annual subscription fees paid for the relevant service directly causing the damage for that twelve-month period. Any “twelve-month period” commences on the date of renewal.
6.2 Exclusion of Damages
Subject to Section 6.1:
a. neither Party (nor its respective Affiliates or subcontractors) will be liable to the other Party for any special, incidental, consequential, or indirect damages, loss of goodwill or business profits, work stoppage or for exemplary or punitive damages, and
b. Dataserver will not be liable for any damages caused by any service provided for no fee.
6.3 Risk Allocation
The Agreement allocates the risks between the Parties. The fees for the services reflect this allocation of risk and limitations of liability.
7 INTELLECTUAL PROPERTY RIGHTS
Dataserver own all intellectual property rights in and related to the SaaS, Documentation, Consulting Services, design contributions, related knowledge or processes, and any derivative works of them. All rights not expressly granted to the Customer are reserved to Dataserver.
The Customer retains all rights in and related to the Customer Data. Dataserver may use the collected and stored information for the creation of statistics. Dataserver will use such information only in anonymized form, i.e. Dataserver will neither reveal the Customer’s or a user’s identity, unless appropriate prior written approval is obtained.
Any changes and improvements to the SaaS, belongs to Dataserver, including those derived from a consultancy service paid by the customer.
8 HANDLING OF DATA
8.1 Access to Customer Data
During the Subscription Term, the Customer can access the Customer Data. The Customer may export and retrieve the Customer Data in a standard format.
In the event of third-party legal proceedings relating to the Customer Data, Dataserver will cooperate with the Customer and comply with applicable law (provided that the Customer will cover all related expenses Dataserver will have to incur in the event) with respect to handling of the Customer Data.
8.2 Other Relevant Data Protection Laws and Regulations
Dataserver is compliant with GDPR and the policies are available on request.
The Customer is responsible for informing Dataserver about the need for complying with Other Relevant Data Protection Laws and Regulations.
If Dataserver is required to implement measures beyond those for which information was provided prior to the entry into contract, the Customer must cover Dataserver’s costs for such measures.
9 USAGE OF CUSTOMER DATA
The Customer is responsible for the Customer Data and entering it into the SaaS. The Customer grants Dataserver a non-exclusive right to process Customer Data to deliver and improve the services.
Dataserver may create analyses utilizing, in part, Customer Data and information derived from the Customer’s use of the SaaS and Consulting Services. Analyses will anonymize and aggregate information and will be treated as SaaS Materials. Examples of how analyses may be used include: optimizing resources and support; research and development; automated processes that enable continuous improvement, performance optimization and development of new products and services; verification of security and data integrity; internal demand planning; and data products such as industry trends and developments, indices and anonymous benchmarking.
The Customer confirms that the Customer has sufficient local legal basis for processing of Customer Data and the right to use Dataserver for processing of the Customer Data.
10 BREACHES
10.1 Notification requirements
Any breach of the Agreement shall be notified in writing, within reasonable time after the Party having discovered, or should have discovered, the breach. The notification shall state the facts describing the breach together with a reference to the relevant part of the Agreement.
In any event, any breach of service delivered, shall be notified within 12 months after delivery of the service in order to valid.
10.2 Consequences of breaches
Both Parties will use reasonable efforts to rectify any breaches without undue delay. In the case of material breaches that are not rectified within 30 days after the responsible Party has received written notice that the Agreement will be terminated unless the breach is rectified within the stated deadline, the affected Party has the right to terminate the Agreement.
In the case of delayed payment, interest is calculated in accordance with the Agreement.
If the Customer is in breach of its payment obligations beyond 30 days, from the date of invoice, Dataserver has the right to choose between:
a. Continue to abide by the Agreement with the aforementioned claims for interest
b. Cancel the Agreement with 30 days written notification. The right to cancel the Agreement is annulled if payment for the due amount including accrued interest up to and including the day of payment is received prior to the expiration of the aforementioned 30-day period.
c. With at least five business days written notice, freely choose to halt any service to the Customer, until correct payment, including interest on overdue payments, has been received by Dataserver. The Customer is not entitled to any refund for periods without access due to late payments.
In case of other breaches to the Agreement, the affected Party may demand compensation for documented financial losses within the limitations in this Agreement
The liability limitations do not apply if the Party has shown gross negligence.
11 CONFIDENTIALITY
11.1 Use of Confidential Information
Dataserver will protect all Confidential Information of the Customer as strictly confidential to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care.
Dataserver will not disclose any Confidential Information of the Customer to any person other than its personnel, representatives or Authorized Users whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement or advisors and who are under obligations of confidentiality substantially similar to those in this sub-section.
In particular, the Customer will not disclose the Agreement or the pricing to any third party.
The parties are responsible that they themselves and those who act on the relevant Party’s behalf, maintain secrecy on and prevent that other obtain knowledge on the content of the Agreement and information that the Parties become aware of in connection with the Agreement, hereunder the commercial, technical or personal matters of others.
Employees or others who resign their positions with one of the Parties are bound by confidentiality concerning matters as mentioned above also after leaving their positions.
Confidential Information of either party disclosed prior to execution of the Agreement will be subject to this section.
In the event of legal proceedings relating to the Confidential Information, Dataserver will cooperate with the Customer and comply with applicable law (all at the Customer’s expense) with respect to the handling of the Confidential Information.
11.2 Exceptions
The restrictions on use or disclosure of Confidential Information will not apply to any Information that:
a. Is independently developed by Dataserver without reference to the Customer ’s Confidential Information,
b. Is generally available to the public without breach of the Agreement,
c. At the time of disclosure, was known to Dataserver free of confidentiality restrictions, or
d. The Customer agrees in writing is free of confidentiality restrictions.
e. Is required to be disclosed by law, court order or other similar binding governmental decisions.
11.3 Publicity
The Customer agrees that Dataserver may use the Customer’s name and logo in customer listings and as part of marketing efforts (including but not limited to reference calls and stories, press testimonials, case studies, site visits). The Customer agrees that Dataserver may share information on the Customer with for marketing and other business purposes and that it has secured appropriate authorizations to share the Customer employee contact information with Dataserver.
When the Customer presents or promotes its internal management system, Dataserver will be mentioned by name.
12 TERM AND TERMINATION
12.1 Termination
In additional to the termination upon notice, a Party may terminate the Agreement immediately if the other Party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of selected creditors.
Dataserver may immediately terminate the agreement and the shut down the access to SaaS and other services if the Customer violates Clause 3.
12.2 Effect of Termination
Upon the effective date of any form of termination of the Agreement:
a. The Customer’s right to use the SaaS and all connected Confidential Information will end, and all Authorized Users will be disabled from using the SaaS.
b. Confidential Information of the disclosing Parties will be returned or destroyed
The Customer’s access to all data in the SaaS, as well as backup and maintenance of data will cease after 30 days. The Customer has the sole responsibility to ensure that any needed Customer Data is extracted before the effective date.
Termination of the Agreement has no effect on the Parties’ duty of confidentiality, any outstanding guarantee obligations or incurred, unsettled payment obligations.
Termination of this Agreement does not affect other agreements between the Parties.
13 MISCELLANEOUS
13.1 Severability
If any provision of the Agreement is held to be invalid or unenforceable, it should be upheld and interpreted to the extent possible by law in order to meet the intention of the Parties. Any invalidity or unenforceability of any provision will not affect the other provisions of the Agreement.
13.2 Transfer of rights and subcontracting
Without Dataserver’s prior written consent, the Customer may not assign or transfer the Agreement (or any of its rights or obligations) to any party.
Dataserver may subcontract parts of the services to third parties. Using subcontractors will not reduce nor extend any rights or obligations of Dataserver or the Customer.
13.3 Audits
The Customer has the right himself, or through use of a third party, to carry out audits of Dataserver’s organization, infrastructure, routines and documentation. The Customer must notify Dataserver at least 14 days prior to the audit.
Any work required by Dataserver in direct connection with such audits will be billed to the Customer in accordance with unit prices for extended support services in accordance with the Agreement.
Any subsequent measures Dataserver is ordered to implement are to be paid by the Customer in accordance with unit prices for extended support services insofar that this does not apply to measures that are required in order to fulfil obligations of Dataserver pursuant to the Agreement.
13.4 Electronic Signature
Electronic signatures that comply with applicable law are deemed original signatures.
13.5 Regulatory Matters
The Customer will not submit Confidential Information of Dataserver to any government agency for licensing consideration or other regulatory approval and will not export Confidential Information of Dataserver to countries, persons or entities if prohibited by export laws.
13.6 Relationship of the Parties
The Parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties or the Parties’ employees is created by the Agreement.
13.7 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.
13.8 Disclaimer
Except as expressly provided in the Agreement, Dataserver makes no representation or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality, or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free.
13.9 Entire Agreement
The Agreement constitutes the complete and exclusive statement of the agreement between Dataserver and the Customer in connection with the Parties’ business relationship related to the subject matter of the Agreement. All previous representations, discussions, and writings (including any confidentiality agreements) are merged in and superseded by the Agreement and the Parties disclaim any reliance on them. The Agreement may be modified solely in writing signed by the Parties.