- “Customer Content” means all data and materials provided by Customer to Supplier for use in connection with the SaaS Services, including, without limitation, customer applications, data files, and graphics.
- “Documentation” means the user guides, online help, release notes, training materials and other documentation provided or made available by Supplier to Customer regarding the use or operation of the SaaS Services.
- “SaaS Services” refers to the specific Supplier internet-accessible service identified in a Service Specification that is hosted by Supplier or its services provider and made available to Customer over a network on a term-use basis.
- “Security Credentials” means any information, token or password, used for the purposes of authentication.
- “Service Specification” is a written document quote that specifies the quantity and price executed separately by Supplier and Customer for the purpose of purchasing SaaS Services under the terms and conditions of this SaaS Agreement.
- “Software” means the object code version of any software to which Customer is provided access as part of the Service, including any updates or new versions.
- “Subscription Term” means the period specified in a Service Specification during which Customer will have on-line access and use of the Software through Supplier’s SaaS Services. The Subscription Term shall automatically renew unless either party terminates this Agreement using the designated customer controls.
During the Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty-free, worldwide right to access and use the SaaS Services solely for the Customer’s internal business operations subject to the terms of this Agreement and up to the number of external users documented in the Service Specifications.
Customer acknowledges that this Agreement is a services agreement and Supplier will not be delivering copies of the Software to Customer as part of the SaaS Services.
- (i) Supplier shall, during the Subscription Term, provide the Customer with the Services in accordance with the Service Specifications;
- (ii) Supplier or an implementation partner assigned by the Supplier shall conduct the implementation of the Services with due skill and care and in accordance with the Service Specifications and otherwise in accordance with applicable professional standards;
- (iii) Supplier shall provide the Services in accordance with all applicable laws and regulations;
- (iv) Supplier shall keep the Services updated and upgraded so that the Services regularly are improved and enhanced;
- (v) Support and maintenance services shall be provided as part of the Services and the Supplier shall deliver maintenance in accordance with the Annex 1 - Technical Support Scheme.
- (i) Customer shall be responsible for having access to the Internet in order to access the Services;
- (ii) Customer shall be responsible for managing and secure handling of any Security Credentials given to the Customer to access the Services. Sharing personal Security Credentials, such as passwords, with multiple persons is not allowed and is strongly against our security guidelines.
- (iii) Customer shall only use the Services in accordance with the Supplier’s instructions.
Customer shall order SaaS Services pursuant to a Service Specification. All services acquired by Customer shall be governed exclusively by this Agreement and the applicable Service Specification. In the event of a conflict between the terms of a Service Specification and this Agreement, the terms of the Service Specification shall take precedence.
Invoicing and payment
Unless otherwise provided in the Service Specification, Supplier shall invoice Customer for all fees on the Subscription effective date. Customer shall pay all undisputed invoices within 14 days after Customer receives the invoice. Except as expressly provided otherwise, fees are non-refundable.
The Supplier shall bill Customer for applicable taxes as a separate line item on each invoice. Customer shall be responsible for payment of all sales and use taxes, value-added taxes (VAT), or similar charges relating to Customer’s purchase and use of the services.
Term and Termination
Term of Agreement
The term of this Agreement shall begin on the Subscription effective date and shall continue until terminated by either party as outlined in this Section.
Termination of Agreement
Either party may terminate this Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach.
Suspension of non-payment
The Supplier reserves the right to suspend delivery of the SaaS Services if Customer fails to timely pay any undisputed amounts due to the Supplier under this Agreement, but only after Supplier notifies Customer of such failure and such failure continues for fifteen (15) days. Suspension of the SaaS Services shall not release Customer of its payment obligations under this Agreement. Customer agrees that Supplier shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the SaaS Services resulting from Customer’s nonpayment.
Suspension for on-going harm
The Supplier reserves the right to suspend delivery of the SaaS Services if Supplier reasonably concludes that Customer use of the SaaS Services is causing immediate and ongoing harm to Supplier or others. In the extraordinary case that Supplier must suspend delivery of the SaaS Services, Supplier shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. Supplier shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Services.
Effect of Termination
- (i) Upon termination of this Agreement or expiration of the Subscription Term, Supplier shall immediately cease providing the SaaS Services and all usage rights granted under this Agreement shall terminate.
- (ii) If Supplier terminates this Agreement due to a breach by Customer, then Customer shall immediately pay to Supplier all amounts then due under this Agreement and to become due during the remaining term of this SaaS Agreement, but for such termination. If Customer terminates this Agreement due to a breach by Supplier, then Supplier shall immediately repay to Customer all pre-paid amounts for any unperformed SaaS Services scheduled to be delivered after the termination date.
- (iii) Upon termination of this Agreement and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.
- (i) Supplier represents and warrants that it will provide the SaaS Services in a professional manner consistent with general industry standards and that the SaaS Services will perform substantially in accordance with the Documentation. For any breach of a warranty, Customer’s exclusive remedy shall be as provided in Section 6, Term and Termination.
- (ii) Supplier warrants that the SaaS Services will perform in all material respect in accordance with the Documentation. Supplier does not guarantee that the SaaS Services will be performed error-free, without interruptions, or that Supplier will correct all errors.
- (iii) Customer acknowledges that Supplier does not control the transfer of data over communication facilities, including the internet, and that the SaaS Service might be subject to limitations, delays, and other problems inherent in the use of such communication facilities.
Limitation of liability
Neither Supplier nor any of its licensors or other suppliers shall be liable for indirect, incidental, or consequential damages, including, without limitation, damages for loss business, profits, data or use of any service incurred by either party or any third party in connection with this Agreement, regardless of the nature of the claim, including negligence. Neither party’s aggregate liability for damages under this Agreement, regardless of the nature of the claim, including negligence, shall exceed the fees paid or payable by Customer under this SaaS Agreement during the 6 months preceding the date the claim arose. The foregoing limitation shall not apply to the party’s obligation under sections “Indemnification”, “Confidentiality”.
Indemnification by Supplier
Supplier shall have no liability for any claim based on (a) the Customer Content, (b) modification of the SaaS Services not authorized by Supplier, or (c) use of the SaaS Services other than in accordance with the Documentation and this Agreement. Supplier may, at its sole option and expense, procure for Customer the right to continue the use of the SaaS Services, modify the SaaS Services in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay to Customer any amount paid by Customer with respect to the Subscription Term following the termination date.
Indemnification by Customer
If a third party makes a claim against Supplier that the Customer Content infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend Supplier and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.
Conditions for Indemnification
A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.
“Confidential Information” means any information disclosed by a party to the other party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible forms, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving party to be “confidential” or “proprietary” within thirty (30) days of such disclosure, (c) is specifically deemed to be confidential by the terms of this Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality. Subject to the display of Customer Content as contemplated by this Agreement, Customer Content is deemed Confidential Information of Customer. Supplier’s software and Documentation are deemed Confidential Information.
During the term of this Agreement and for five (5) years thereafter (perpetually in the case of software), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information, and which are provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party.
Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without the use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this Agreement and the relationship of the parties.
Customer acknowledges that SaaS Services is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Supplier’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties.
Neither party may assign this Agreement or any right under this Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that either party may assign this Agreement to an acquirer of all or substantially all of the business of such party to which this SaaS Agreement relates, whether by merger, asset sale or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its duties under this Agreement, provided, however, that such party shall not be relieved of any obligation under this Agreement.
Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.
If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full force.
Sections 6 “Term and Termination”, 8 “Warranties”, 12 “General Provisions” of this Agreement shall survive the expiration or termination of this Agreement for any reason.
Supplier may include Customer’s name and logo in its customer lists and on its website. Upon signing, Supplier may issue a high-level press release announcing the relationship and the manner in which Customer will use the Supplier’s solution. Supplier shall coordinate its efforts with appropriate communications personnel in Customer’s organization to secure approval of the press release if necessary.
Data export laws and regulations of the United States, the European Union and any other relevant local export laws and regulations apply to the SaaS Services. Customer agrees that such export control laws govern its use of the SaaS Services (including technical data) and any Services deliverables provided under this Agreement, and Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws.
No Third-Party Beneficiaries
This Agreement is an agreement between the parties and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity.
The parties have the status of independent contractors, and nothing in this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.
Supplier may anonymously compile statistical information related to the performance of the Services for purposes of improving the SaaS service, provided that such information does not identify Customer’s data or include Customer’s name.
This Agreement shall be governed and construed in accordance with the laws of Estonia, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
Compliance with Laws
Supplier shall comply with all applicable local, state, national and foreign laws in connection with its delivery of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data.
Annex 1 - Technical Support Scheme
Support and Maintenance Services
Support and Maintenance Services are included in the SaaS subscription and entitle Customer to the following:
- (i) Electronic support to help Customer locate and correct problems with the Software;
- (ii) Bug fixes and code corrections to correct Software malfunctions to bring such Software into substantial conformity with the operating specifications;
- (iii) All extensions, enhancements, and other changes that Supplier, at its sole discretion, makes or adds to the Software and which Supplier furnishes, without charge, to all other Customers of the SaaS Service.
Response and Resolution Goals
The following definitions apply to this Addendum:
- “Business hours” mean time between 09:00 - 17:00 UTC, Monday - Friday;
- “Fix” means the repair or replacement of Software component to remedy Problem;
- “Problem” means a defect in Software as defined in Supplier’s standard Software specification that significantly degrades such Software;
- “Respond” means acknowledgment of Problem containing date and time assigned and severity assignment;
- “Workaround” means a change in the procedures followed or data supplied by Customer to avoid a Problem without substantially impairing Customer’s use of the Software.
If the production system is creating a significant impact to the Customer’s business function preventing that function from being executed, Supplier will respond within 24 business hours. Upon confirmation of receipt, a Supplier support personnel begins continuous work on the Problem, and a Customer resource must be available at any time to assist with problem determination. Customer Support will provide reasonable effort for Workaround or Fix within 2 business days once the Problem is reproducible or once Supplier have identified the Software defect. Supplier may incorporate Fix in a future release of Software.
If the production system or application issue is not critical: no data has been lost, and the system has not failed. The issue has been identified and does not hinder normal operation, or the situation may be temporarily circumvented using an available workaround, Supplier will respond within 48 business hours. Customer Support will provide reasonable effort for Workaround or Fix within 10 business days, once the Problem is reproducible. Supplier may incorporate Fix in a future release of Software.
General questions and other requests
For general questions, enhancement requests, or the functionality that does not match documented specifications, Supplier will respond within 72 business hours. Resolution of Problem may appear in a future release of Software.
Customer Support offers several ways to resolve any technical difficulties. In addition to online help in the Software, which can be accessed by clicking the “Help” tab when logged into the Software, function-specific help information can also be accessed throughout the Software using the ‘?’ option. The online support center https://privian.io/help is available 24x7 for self-service technical assistance.
The support email address is [email protected].