This Master Services and Software Agreement (this "Master Agreement") is effective as of the Effective Date of the applicable Order Form and entered into by and between Company and Customer.
WHEREAS, Customer desires to procure from Company, and Company desires to provide to Customer, certain services and/or software, on the terms and conditions set forth in this Master Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, and of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer and Company hereby agree as follows:
This Master Agreement includes the following Exhibits and Attachments, each of which is hereby incorporated by reference and made a part hereof:
Exhibit or Attachment |
Description |
Exhibit 1: Software License Terms |
The terms and conditions in this Exhibit apply to Software that is licensed to Customer as specified in the applicable Order Form. |
Attachment 1.1: Oracle Software Collateral License Agreement |
If use of the Software requires installation and use of Database Software, and Customer elects to purchase a license to Oracle's Database Software from Company, such license shall be subject to the terms and conditions set forth in the Oracle Software Collateral License Agreement in this Attachment. |
Exhibit 2: Maintenance and Support Terms |
The terms and conditions in this Exhibit apply to Company's provision of Maintenance Services purchased by Customer under the applicable Order Form. |
Exhibit 3: Cloud Services Terms |
The terms and conditions of this Exhibit apply to Company's provision of Cloud Services purchased by Customer under the applicable Order Form. |
Exhibit 4: Data Processing Agreement |
The terms and conditions of this Exhibit apply to Company's and its Subprocessors' processing of Personal Data that Customer provides to Company as part of the applicable Services. |
Attachment 4.1: Description of Processing |
This Attachment describes the nature and purpose of the processing, the type of Personal Data and the categories of Data Subjects. |
Attachment 4.2: Technical and Organizational Measures |
This Attachment describes the technical and organizational measures implemented by Company that are designed to secure Personal Data processed as part of the applicable Services in accordance with applicable data privacy and protection laws. |
Exhibit 5: Managed Services Terms |
The terms and conditions of this Exhibit apply to Company's provision of Managed Services purchased by Customer under the applicable Order Form. |
Exhibit 6: Professional Services Terms |
The terms and conditions of this Exhibit apply to Company's provision of Professional Services purchased by Customer under the applicable Order Form. |
1. License and usage rights.
1.1. Subject to Customer's compliance with the terms and conditions of the Agreement and the applicable Documentation, Company shall grant to Customer a non-exclusive, non-transferable and non-assignable right and license to access and use the Materials and Services specified in the applicable Order Form during the relevant Term solely for Customer's internal business purposes (the "License"). Except for the License, Company retains all right, title and interest in and to the Materials and Services, including all copies of the Materials delivered or otherwise made available to Customer or made by or on behalf of Customer in connection with its use of the Materials or Services. Unless otherwise agreed by Company in writing, Customer shall not access or use the Materials or Services outside of the Location.
1.2. Customer acknowledges that use of the Materials and Services may require installation and use of the Database Software. Therefore, in such event, Customer agrees to obtain all licenses to the Database Software necessary to use the Materials and Services from the developer or a licensed distributor of such Database Software. Customer may elect to buy a license to Oracle's Database Software from Company. If Customer chooses to do so, such license shall be subject to the terms and conditions set forth in Attachment 1.1 (Oracle Software Collateral License Agreement). Customer shall indemnify, defend and hold harmless the Company Indemnitees from any and all Losses and threatened Losses due to third party claims arising out of or in connection with Customer's use of Oracle's Database Software other than as permitted under the Oracle Software Collateral License Agreement. For clarity, a license to the Database Software is included as part of the Cloud Services provided by Company.
2. LICENSE AND USAGE RESTRICTIONS.
2.1. The applicable Order Form shall set forth the maximum number and type (e.g., Light Named User, Named User, Supplier User, etc.) of individuals that are permitted to access and use the Materials and Services (the "Authorized Users"). Only Authorized Users are allowed to access and use the Materials and Services.
2.2. Usernames, passwords and other account information applicable to the Materials and Services (collectively, "Access Credentials") may not be used by more than one Authorized User, but may be transferred from one Authorized User to another if the original Authorized User is no longer permitted to use the Materials and Services, as applicable. Customer shall be responsible for (a) its employees', agents', contractors', outsourcers', customers' and suppliers' (collectively, "Representatives") access to and use of the Materials and Services and full compliance with the terms and conditions of the Agreement; (b) identifying and approving all Authorized Users; (c) controlling against unauthorized access to or use of the Materials and Services by its Representatives or third parties through its or its Representatives' networks or systems; (d) maintaining the confidentiality of its Access Credentials; and (e) all activities that occur under its Access Credentials.
2.3. Company shall deliver or otherwise make available to Customer the Materials and Services set forth in the applicable Order Form. The Materials and Services shall be delivered or otherwise made available to Customer in the format set forth in the applicable Order Form or, if no format is set forth therein, in Company's standard format.
2.4. Customer shall not (a) use the Materials or Services for rental, time sharing, subscription services, hosting, or outsourcing, or otherwise commercially exploit the Materials or Services; (b) remove or modify any program markings or any notice of Company's or its licensors' proprietary rights; (c) make the Materials or Services available in any manner to any third party for use in the third party's business operations (unless such access is expressly permitted by Company in writing for a specific program license); (d) reverse engineer, disassemble or decompile the Materials or Services or make derivative works (including, without limitation, to review data structures or similar materials produced by programs); (e) duplicate the Materials or Services (except that, with respect to Software installed on Customer's premises, Customer may make a sufficient number of copies of each program for the Authorized Users' licensed use and one copy of each program media); or (f) perform any benchmark, performance or other tests or scans on the Materials or Services or disclose any results of such tests or scans run on the Materials or Services.
2.5. Customer shall not use the Materials or Services for any purpose that may (a) menace or harass any person, or cause damage or injury to any person or property; (b) involve the publication of any material that is false, defamatory, harassing or obscene; (c) violate privacy rights or promote bigotry, racism, hatred or harm; (d) constitute unsolicited bulk email, junk mail, spam or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights; (f) violate applicable laws or regulations; or (g) circumvent or endanger the operation or security of the Materials or Services. Company reserves the right to take remedial action if Customer's use of the Materials or Services violates the foregoing restrictions, including by suspending or limiting Customer's access to the Materials and Services.
2.6. Customer shall comply fully with all applicable export and import laws to ensure that neither the Materials or Services, nor any direct products thereof, are exported, directly or indirectly, in violation of applicable laws.
2.7. Customer shall monitor its own use of the Materials and Services and immediately report any use in violation of the Agreement to Company (including any use of the Materials and Services in excess of the applicable Usage Metrics). Company may monitor Customer's use of the Materials and Services to verify compliance with the Agreement, as well as to help provide and improve the Materials and Services. In addition, Customer shall (a) permit Company to audit Customer's use of the Materials and Services (which shall include, without limitation, the right for Company to inspect the Location and any other locations from which the Materials and Services are accessed and used, upon reasonable prior notice, for the purpose of verifying Customer's compliance with the terms and conditions of the Agreement) and (b) provide Company with reasonable assistance and access to information in the course of such audit.
2.8. Customer acknowledges that third party technology that may be appropriate or necessary for use with the Materials and Services is specified in the applicable Documentation or as otherwise notified by Company and that such third party technology is licensed to Customer only for use with the Materials and Services under the terms of the license agreement specified in the applicable Documentation or as otherwise notified by Company and not under the terms of the Agreement.
2.9. Customer must accept all patches, bug fixes, updates, maintenance and service packs (collectively, "Patches") required for the proper performance of the Materials and Services as such Patches are generally released by Company.
2.10. Customer may only engage a third party to host the Software ("Hosting Provider") with Company's prior written consent. Company may require a separate written agreement as a condition to such consent. Software hosted by a Hosting Provider must remain under Customer's sole control at all times, unless management and operation of the Software by the Hosting Provider is explicitly approved by Company, in which case Customer shall ensure that the Hosting Provider manages and operates the Software in conformance with the Agreement and solely for Customer's internal business purposes as permitted herein. If Customer becomes aware of any actual or suspected unauthorized use or disclosure of the Software, Customer shall immediately terminate the Hosting Provider's access to the Software. A breach of the Agreement caused by a Hosting Provider will constitute a breach by Customer. Customer shall indemnify, defend and hold harmless the Company Indemnitees from any and all Losses and threatened Losses due to third party claims arising out of or in connection with Customer's use of the Hosting Provider's services. Customer shall notify Company if the Hosting Provider or its relevant business comes under the control of a third party, in which case Company may withdraw its prior consent.
3. PAYMENT AND INVOICING TERMS.
3.1. Payment Terms. Unless otherwise agreed in the applicable Order Form, Customer shall pay all fees and expenses incurred in connection with the Agreement within thirty (30) days of the date of the applicable invoice. If Customer has a valid reason to dispute an invoice, Customer shall so notify Company within seven (7) days of Customer's receipt of the invoice, and, if no such notification is given, the invoice shall be deemed valid. If Customer disputes only a portion of an invoice, the portion of the invoice that is not in dispute shall be paid by Customer in accordance with the Agreement.
3.2. A finance charge equal to the lesser of (a) one and one-half percent (1.5%) per month or (b) the maximum amount allowed by law shall be charged on any past due amounts. Payments by Customer shall be applied first to accrued interest and then to the principal unpaid balance. Any attorney fees, court costs, or other costs incurred by Company in the collection of past due amounts shall be paid by Customer. If payment of invoices is not current, or Customer has not complied with any of its other obligations under the Agreement, Company may suspend performing further work, as well as Customer's access to and use of the Materials and Services.
3.3. To the extent Customer's use of the Materials or Services exceeds the Usage Metrics in the applicable Order Form, Company may invoice Customer, and Customer shall pay, any additional fees (at Company's then-current rates) to account for Customer's excess usage.
3.4. All amounts payable by Customer pursuant to the Agreement are exclusive of taxes. Accordingly, Customer will pay any sales, value-added or other similar taxes imposed by applicable law that Company must pay based on the services Customer ordered, except for taxes based on Company income.
3.5. Reimbursable Costs. Customer shall reimburse Company for all travel and living expenses incurred by Company personnel in connection with the Agreement. All extraordinary travel and living expenses must receive Customer's approval. Upon Customer's reasonable request, Company shall provide Customer with substantiation of travel and living expenses incurred by Company personnel.
4. LIMITATION OF LIABILITY.
4.1. Notwithstanding anything to the contrary in the Agreement, except as set forth in section 4.3 and SUBJECT TO SECTION 4.5, each PARTY's AGGREGATE maximum liability for any damages arising out of or related to the Agreement, whether in contract, tort or otherwise, shall be limited to the amount of the FeeS actually paid by Customer to Company for the APPLICABLE MATERIALS OR SERVICES under the Order Form, AND IN THE TWELEVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT, giving rise to the liability.
4.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, EXCEPT AS SET FORTH IN SECTION 4.3 AND SUBJECT TO SECTION 4.5, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE.
4.3. Subject to section 4.5, THE LIMITATIONS OF LIABILITY SET FORTH IN SECTIONS 4.1 AND 4.2 SHALL NOT APPLY WITH RESPECT TO CUSTOMER's (A) violation of company's intellectual property OR PROPRIETARY rights; (b) breach of its confidentiality, DATA PRIVACY OR DATA PROTECTION OBLIGATIONS under the agreement; (c) indemnification obligations under the agreement; OR (D) FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
4.4. CUSTOMER ACKNOWLEDGES THAT COMPANY DOES NOT PROVIDE LEGAL OR COMPLIANCE ADVICE. CUSTOMER IS RESPONSIBLE FOR MAKING ITS OWN ASSESSMENT OF ITS LEGAL AND REGULATORY REQUIREMENTS AND WHETHER CUSTOMER'S PROPOSED USE OF THE MATERIALS AND SERVICES MEETS THOSE REQUIREMENTS.
4.5. notwithstanding sections 4.1, 4.2 and 4.3 above, TO THE FULLEST EXTENT PERMITTED BY LAW, for materials and services provided at no charge, company shall have no liability whatsoever.
5. REPRESENTATIONS AND WARRANTIES.
5.1. Authority. Each party represents and warrants that it has the full power, capacity and authority to enter into, and perform its obligations under, the Agreement
5.2. Compliance with Laws. Each party warrants that it will comply with all laws and regulations applicable to it in connection with: (a) in the case of Company, the operation of Company's business as it relates to the Materials and Services; and (b) in the case of Customer, Customer's access to and use of the Materials and Services.
5.3. Disclaimer. Except as set forth elsewhere in the Agreement, the Materials, Services AND RELATED WORK PRODUCT are provided on an "as is" basis and Company makes no warranty of any kind, whether express, implied or statutory, regarding the Materials, Services OR WORK PRODUCT, including, without limitation, the implied warranties of merchantability, suitability, originality or fitness for a particular purpose, non-infringement or results to be derived from the use of or integration with any MATERIALS, services OR WORK PRODUCT provided under the Agreement, or that the operation of any MATERIALS, services OR WORK PRODUCT will be secure, uninterrupted or error free.
6. PROPRIETARY RIGHTS.
6.1. The Materials, Services and Work Product and all copyright, patent, trade secret, trade mark and other proprietary and intellectual property rights of any kind (collectively, "Intellectual Property Rights") arising in the Materials, Services and Work Product, and in all other written or oral information provided by Company to Customer in connection with the Agreement, are and shall remain the exclusive property of Company. Customer agrees to execute and to ensure its third parties execute such documentation as reasonably necessary to secure Company's title over such rights. All Intellectual Property Rights arising in any third party content or other third party products or services are and shall remain the exclusive property of the third party provider of such third party content or other third party products or services. Subject to the preceding three sentences and other applicable provisions of the Agreement, all Intellectual Property Rights arising in the Customer Data are and shall remain the exclusive property of Customer.
6.2. Customer shall notify Company immediately if Customer becomes aware of any unauthorized use of or access to the whole or any part of the Materials, Services, Work Product or Company's other proprietary materials or Confidential Information by any person or entity.
6.3. Customer grants to Company a worldwide, perpetual, irrevocable, royalty-free right and license to use and incorporate into Company's products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of Company's products and services.
7. INDEMNIFICATION.
7.1. Company shall defend Customer against claims brought against Customer by any third party alleging that Customer's use of the Materials, in accordance with the terms of the Agreement, constitutes an infringement or misappropriation of such third party's patent, copyright or trade secret rights ("IP Claims"). Company shall pay damages finally awarded against Customer (or the amount of any settlement Company enters into) with respect to IP Claims. This obligation of Company shall not apply if the alleged infringement or misappropriation results from (a) Company's compliance with any designs, specifications or instructions provided by or on behalf of Customer; (b) modification of the Materials or Services by or on behalf of Customer; (c) combination, operation or use of the Materials or Services with non-Company products, services, software or business processes; or (d) Customer's violation of, or access to or use of the Materials or Services other than as permitted by, the Agreement or the applicable Documentation. Customer shall indemnify, defend and hold harmless the Company Indemnitees from any and all Losses and threatened Losses due to third party claims arising out of or in connection with (i) Customer's breach of its obligations under the Agreement; (ii) the Customer Data or (iii) the activities described in items (a), (b), (c) and (d) above.
7.2. If Company believes that the Materials or Services may have violated a third party's intellectual property rights, Company may elect to either modify the Materials and Services or obtain a license to allow Customer to continue to use the Materials and Services. If neither of these alternatives is commercially reasonable, in Company's sole discretion, Company may terminate Customer's ability to further access to and use of the applicable Materials and Services.
7.3. The indemnification obligations under this Section 7 are conditioned on: (a) the party against whom a third party claim is brought (the "Indemnified Party") timely notifying the other party (the "Indemnifying Party") in writing of any such claim, provided however that the Indemnified Party's failure to provide or delay in providing such notice shall not relieve the Indemnifying Party of its obligations under this Section 7 except to the extent such failure or delay prejudices the defense; (b) the Indemnifying Party having the right to fully control the defense of such claim; and (c) the Indemnified Party reasonably cooperating in the defense of such claim. Any settlement of any claim shall not include a financial or specific performance obligation on or admission of liability by the Indemnified Party, provided however that Company may settle any claim on a basis requiring Company to substitute for the Materials or Services any alternative substantially equivalent non-infringing product or service. The Indemnified Party may appear, at its own expense, through counsel reasonably acceptable to the Indemnifying Party.
7.4. The provisions of this Section 7 shall not apply with respect to Materials or Services provided at no charge and state the sole, exclusive and entire liability of Company, its Affiliates and their respective licensors to Customer, and is Customer's sole remedy, with respect to third party claims covered hereunder and to the infringement or misappropriation of third-party intellectual property rights.
8. NON-DISCLOSURE.
8.1. For the purposes of this Section 8, the term "Disclosing Party" refers to a party in the case of such party's disclosure of Confidential Information to the other party, and the term "Recipient" refers to a party in the case of such party's receipt of Confidential Information from the other party.
8.2. Definition of Confidential Information.
8.2.1. "Confidential Information" means (subject to Sections 8.2.2 and 8.2.3) information that Disclosing Party provides to Recipient, including, without limitation, information regarding Disclosing Party's technology, software, code, plans, pricing, specifications, marketing or promotion, customers, and practices.
8.2.2. Information as described in Section 8.2.1 shall be deemed Confidential Information only under the following circumstances: (a) if in written or tangible form, is stamped or marked as "proprietary" or "confidential" (or bears a similar legend), (b) if in oral form, is identified as confidential at the time of disclosure or in a written memorandum provided to Recipient's primary representative within thirty (30) days of disclosure that summarizes the information disclosed, or (c) is treated as confidential by Disclosing Party and is the type of information that Recipient should reasonably have understood to be confidential. Notwithstanding the foregoing, (i) the Materials; (ii) Services; (iii) terms of the Agreement and (v) any information contained or embodied in the Materials or Services (excluding Customer Data), or otherwise disclosed or made available to Customer by or on behalf of Company pursuant to or in connection with the Agreement (whether orally or in writing) shall be deemed to be Confidential Information of Company whether or not such information is expressly stated to be confidential or marked as such.
8.2.3. Confidential Information does not, however, include any information that: (a) is or becomes publicly available without Recipient's breach of any obligation owed Disclosing Party; (b) became known to Recipient prior to Disclosing Party's disclosure of such information to Recipient; (c) became known to Recipient from a source other than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; or (d) is independently developed by Recipient.
8.3. Non-Disclosure and Non-Use of Confidential Information.
8.3.1. Confidential Information is provided to Recipient for review and evaluation only and may only be used by Recipient to the extent necessary to perform its obligations under the Agreement. No other use is permitted.
8.3.2. Recipient shall not disclose Confidential Information to anyone other than its employees and contractors who legitimately need access to it for permitted use. Recipient shall notify its employees and contractors who are given access to Confidential Information that they have an obligation not to disclose Confidential Information in violation of this Section 8 and shall take such steps as are reasonably necessary to ensure compliance with this obligation.
8.3.3. Recipient shall safeguard Confidential Information with reasonable security means at least equivalent to measures that it uses to safeguard its own confidential information (but not less than commercially reasonable measures). Recipient shall store Confidential Information in a safe and secure location.
8.3.4. Recipient may make copies of Confidential Information only as is necessary for it to perform its obligations under the Agreement. Recipient shall reproduce on any copy of Confidential Information all copyright, trademark, trade secret, confidentiality, and patent notices found on the original of such Confidential Information. Recipient shall not reverse engineer any Confidential Information in hardware or software form. Recipient shall not use the Confidential Information for any product design or development unless otherwise expressly agreed in writing by Disclosing Party.
8.3.5. The obligations regarding Confidential Information in the Agreement shall apply for five (5) years after expiration or termination of the Agreement.
8.4. Reservation of Rights. No rights to Confidential Information are granted by implication and nothing in this Section 8 shall be construed as obligating a party to disclose its Confidential Information to the other party, or as granting to or conferring on a party, expressly or impliedly, any rights, title or interest (including license) in or to any Confidential Information of the other party. In addition to the restrictions in the Agreement, Disclosing Party reserves its rights under any of its patents, copyrights, trademarks, or trade secrets except as otherwise expressly provided in the Agreement.
8.5. Return of Confidential Information. Within ten (10) business days of receipt of Disclosing Party's written request or when negotiations or business relations between Disclosing Party and Recipient cease (whichever is earlier), Recipient shall, at Disclosing Party's option, return to Disclosing Party, or destroy, all documents containing Disclosing Party's Confidential Information, including all copies of such Confidential Information made by Recipient. For purposes of this Section 8.5, the term "documents" includes any medium, including paper, disks, optical media, magnetic memory, and any other means of recording information. Recipient shall, upon request, certify in writing that it has complied with this Section 8.5.
8.6. Equitable Relief. Recipient hereby acknowledges that unauthorized disclosure or use of Disclosing Party's Confidential Information will cause immediate and irreparable harm to Disclosing Party. Accordingly, Disclosing Party shall have the right to seek and obtain preliminary and final injunctive relief to enforce the Agreement in case of any actual or threatened breach by Recipient of this Section 8, in addition to other rights and remedies that may be available to Disclosing Party.
9. CUSTOMER AND PERSONAL DATA.
9.1. Customer Data. Customer is responsible for the Customer Data (including, where applicable, entering it into the Selerant Cloud or Customer Private Cloud). If and to the extent Customer provides Company with access to Customer Data, Customer grants to Company (including its Affiliates and subcontractors) a nonexclusive right to process such Customer Data to provide, support and improve the Materials and Services.
9.2. Personal Data. Customer shall collect and maintain all Personal Data contained in the Customer Data in compliance with applicable data privacy and protection laws.
9.3. Security. Customer shall maintain reasonable security standards for its Authorized Users' access to and use of the Materials and Services. Customer is responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Customer Data, including any viruses, trojan horses, worms or other programming routines contained in Customer Data.
9.4. Service Analyses. Company may compile statistical and other information related to the performance, operation and use of the Materials and Services (including Customer Data made accessible to Company and information derived from Customer's use of the Materials and Services) ("Service Analyses"), including for security and operations management, to create statistical analyses and for research and development purposes. Service Analyses shall anonymize and aggregate information and shall be treated as Company's Confidential Information.
10. TERM AND Termination.
10.1. Term. Unless otherwise terminated as set forth in Section 10.2 or elsewhere in the Agreement, this Master Agreement shall remain in effect from the Effective Date of the applicable Order Form until the second (2nd) anniversary of the first date on which no Order Form is then in effect between the parties (the "Master Agreement Term").
10.2. Termination.
10.2.1. Material Breach. If a party (the "Breaching Party") commits a material breach of the Agreement, which breach is not cured within thirty (30) days after notice of the breach from the other party (the "Non-Breaching Party"), then Non-Breaching Party may, by giving notice to Breaching Party, terminate the Agreement, with respect to all or any part of the Materials and Services, as of a date specified in the notice of termination.
10.2.2. Non-Payment. If Customer fails to pay undisputed charges then due and owing under the Agreement by the specified due date, then, if Customer fails to cure such default within thirty (30) days of notice from Company of its intention to terminate, Company may, by notice to Customer, terminate the Agreement, with respect to all or any part of the Materials and Services, as of a date specified in the notice of termination.
10.2.3. Insolvency. If a party (a) files for bankruptcy, (b) becomes or is declared insolvent, or is the subject of any proceedings (not dismissed within sixty (60) days) related to its liquidation, insolvency or the appointment of a receiver or similar officer for such party, (c) makes an assignment for the benefit of all or substantially all of its creditors, (d) takes any corporate action for its winding-up, dissolution or administration, or (e) enters into an agreement for the extension or readjustment of substantially all of its obligations, then the other party may terminate the Agreement, with respect to all or any part of the Materials and Services, as of a date specified in the notice of termination.
10.2.4. Effect of Termination. Customer shall be liable for all payments to Company, including all fees and expenses for all Materials and Services incurred up to the date on which any termination takes place.
10.2.5. No Refund. In the event of any suspension or termination hereunder, Customer shall not be excused from its payment obligations or entitled to any refund of any payments made by Customer, except as expressly stated otherwise in this Agreement.
11. MISCELLANEOUS.
11.1. Insecurity and Adequate Assurances. If reasonable grounds for insecurity arise with respect to Customer's ability to make payments under the Agreement in a timely fashion, Company may demand in writing adequate assurances of Customer's ability to meet its payment obligations under the Agreement. Unless Customer provides the assurances in a reasonable time and manner acceptable to Company, in addition to any other rights and remedies available, Company may partially or totally suspend Company's performance while awaiting assurances, without any liability.
11.2. Severability. Should any part of the Agreement for any reason be declared invalid, such decision shall not affect the validity of any remaining provisions, which remaining provisions shall remain in full force and effect as if the Agreement had been executed with the invalid portion thereof eliminated, and it is hereby declared the intention of the parties that they would have executed the remaining portion of the Agreement without including any such part, parts, or portions which may, for any reason, be hereafter declared invalid. Any provision shall nevertheless remain in full force and effect in all other circumstances.
11.3. Waiver of Remedies. No waiver of any rights arising under the Agreement shall be effective unless in writing and signed by a duly authorized signatory of the party against whom the waiver is to be enforced. No failure or delay by either party in exercising any right, power or remedy under the Agreement (except as expressly provided herein) shall operate as a waiver of any such right, power or remedy.
11.4. Independent Contractor; Company Personnel. Company is an independent contractor of Customer, and no employment agency, trust, partnership or fiduciary relationship is created by the Agreement. The selection of personnel assigned or deployed to deliver the Services is at Company's sole discretion and Company reserves the right to replace any personnel at any time at its sole discretion with personnel of substantially equivalent skills.
11.5. Notices. Customer shall give Company written notice within two (2) years of obtaining knowledge of the occurrence of any claim or cause of action which Customer believes that it has, or may seek to assert or allege, against Company, whether such claim is based in law or equity, arising under or related to the Agreement or to the transactions contemplated hereby, or any act or omission to act by Company with respect to the Agreement. If Customer fails to give such notice to Company with regard to any such claim or cause of action and shall not have brought legal action for such claim or cause of action within said time period, Customer shall be deemed to have waived, and shall be forever barred from bringing or asserting such claim or cause of action in any suit, action or proceeding in any court or before any governmental agency or authority or any arbitrator. Except as otherwise specified in the Agreement, all notices or other communications hereunder shall be in writing, sent by courier or the fastest possible means, provided that recipient receives a manually signed copy and the transmission method is scheduled to deliver within forty-eight (48) hours, and shall be deemed given when delivered to the address specified in the applicable Order Form or such other address as may be specified in a written notice in accordance with this Section. Any party may, by notice given in accordance with this Section to the other party, designate another address or person or entity for receipt of notices hereunder. Notwithstanding the foregoing, Company may give notices to Customer by email to the address(es) specified in the applicable Order Form.
11.6. Assignment. Customer shall not assign the Agreement, in whole or in part, without Company's prior written consent. Company may assign the Agreement, in whole or in part, without the prior written consent of Customer to (1) an Affiliate that that agrees in writing to be bound by the terms and conditions of the Agreement or (2) an entity acquiring, directly or indirectly, Control of Company, an entity into which Company is merged or an entity acquiring all or substantially all of Company's assets, provided that the acquirer or surviving entity agrees in writing to be bound by the terms and conditions of the Agreement.
11.7. Disputes. Company and Customer recognize that disputes arising under the Agreement are best resolved at the working level by the parties directly involved. Both parties are encouraged to be imaginative in designing mechanisms and procedures to resolve disputes at this level. Such efforts shall include the referral of any remaining issues in dispute to higher authority within each participating party's organization for resolution. Failing resolution of conflicts at the organizational level, Company and Customer agree that any remaining conflicts arising out of or relating to the Agreement shall be submitted to non-binding mediation unless Company and Customer mutually agree otherwise. If the dispute is not resolved through non-binding mediation, then the parties may take other appropriate action subject to the other terms of the Agreement.
11.8. Section Headings. Title and headings of Sections of the Agreement are for convenience of reference only and shall not affect the construction of any provision of the Agreement.
11.9. Representations; Counterparts. Each person executing the Agreement on behalf of a party represents and warrants that such person is duly and validly authorized to do so on behalf of such party, with full right and authority to execute the Agreement and to bind such party with respect to all of its obligations hereunder and thereunder. The Agreement may be executed (by original or telecopied signature) in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
11.10. Residuals. Nothing in the Agreement or elsewhere will prohibit or limit Company's ownership and use of ideas, concepts, know-how, methods, models, data, techniques, skill knowledge and experience that were used, developed or gained in connection with the Agreement.
11.11. Nonsolicitation of Employees. During and for one (1) year after the Master Agreement Term, Customer shall not solicit the employment of, or employ Company's personnel, without Company's prior written consent.
11.12. Cooperation. Customer shall cooperate with Company in taking actions and executing documents, as appropriate, to achieve the objectives of the Agreement. Customer agrees that Company's performance is dependent on Customer's timely and effective cooperation with Company. Accordingly, Customer acknowledges that any delay by Customer may result in Company being released from an obligation or scheduled deadline or in Customer having to pay extra fees for Company's agreement to meet a specific obligation or deadline despite the delay.
11.13. Governing Law and Construction; Consent to Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of (1) New York (if Company is Selerant Corp.) or (2) the Italian Republic (if Company is Selerant S.r.l.), without regard to the principles of conflicts of law. The language of the Agreement shall be deemed to be the result of negotiation among the parties and their respective counsel and shall not be construed strictly for or against any party. The exclusive venue for any disputes arising under or related to the Agreement shall be in the (A) state or federal courts located in New York, New York (if Company is Selerant Corp.) or (B) Courts of Milan (Italy) (if Company is Selerant S.r.l.). Customer and Company consent to the personal and exclusive jurisdiction of such courts for such disputes.
11.14. Entire Agreement; Amendments. The Agreement states the entire agreement between the parties and supersedes all previous agreements, understandings, representations, warranties, contracts, proposals and all other communications between the parties respecting the subject matter hereof (oral or written). Company may modify this Master Agreement at any time by posting a revised version on Company's website (currently https://www.selerant.com/agreement/master_agreement.pdf) (the "Website") or by otherwise notifying Customer by email. The modified terms shall become effective upon posting or, if Company notifies Customer by email, as stated in the email message. By continuing to use Materials or Services after the effective date of any modifications to this Master Agreement, Customer agrees to be bound by the modified terms. It is Customer's responsibility to check the Website regularly for modifications to this Master Agreement. Company last modified this Master Agreement on the date listed at the end of this Master Agreement. If Customer submits work orders, change orders, Services requests, purchase orders or other similar documents to Company for accounting or administrative purposes or otherwise, no pre-printed or similar terms and conditions contained in any such documents shall be deemed to supersede any of the terms and conditions of the Agreement.
11.15. Force Majeure. Company shall not be responsible for delays or failures if such delay or failure arises out of causes beyond its control. Such causes may include, without limitation, acts of God or of the public enemy, fires, floods, epidemics, pandemics, outbreaks, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, electrical outages, computer or communications failures, government actions, travel restrictions and severe weather, and acts or omissions of subcontractors or third parties.
11.16. Third Party Beneficiaries. Except as expressly provided in the Agreement, the Agreement is entered into solely between, and may be enforced only by, Company and Customer. The Agreement shall not be deemed to create any rights or causes of action in or on behalf of any third parties, including employees, suppliers and customers of a party, or to create any obligations of a party to any such third parties.
11.17. Survival. Any provision of the Agreement which contemplates performance or observance subsequent to any termination or expiration of the Agreement shall survive any termination or expiration of the Agreement and continue in full force and effect. Additionally, all provisions of the Agreement shall survive the expiration or termination of the Agreement to the fullest extent necessary to give the parties the full benefit of the bargain expressed herein.
11.18. Hierarchy. In the event of any inconsistencies between this Master Agreement and an Order Form, this Master Agreement shall take precedence over the Order Form except to the extent the Order Form expressly states that it takes precedence over this Master Agreement. In the event of any inconsistencies between the main body of this Master Agreement and an Exhibit or Attachment, the Exhibit or Attachment shall take precedence over the main body of this Master Agreement except to the extent the main body of this Master Agreement expressly states that it takes precedence over the Exhibit or Attachment.
11.19. Waiver of Jury Trial. Customer hereby expressly waives any right to a trial by jury in any action or proceeding to enforce or defend any right, power, or remedy under or in connection with the Agreement or under or in connection with any amendment, instrument, document or agreement delivered or which may in the future be delivered in connection therewith arising from any relationship existing in connection with the Agreement, and agrees that any such action shall be tried before a court and not before a jury. The terms and provisions of this Section constitute a material inducement for the parties entering into the Agreement.
11.20. Subcontractors. Company may subcontract, in whole or in part, any of its obligations under the Agreement without the express prior written consent of Customer. Company shall be responsible and liable for any of its subcontractors' failure to perform in accordance with the Agreement to the same extent as if such failure to perform was committed by Company.
11.21. Required Consents. Customer shall obtain all consents or approvals that are required for Customer to use the Materials and Services in the manner contemplated under the Agreement, except for those consents or approvals that are expressly specified in the applicable Order Form as to be obtained by Company.
11.22. Language. If either party provides a translation of the English language version of the Agreement, the English language version of the Agreement shall control in the event of any conflict.
11.23. Publicity. Company and its Affiliates may use Customer's or its Affiliates' names, logos, service marks, trade names or trademarks, or refer to Customer or its Affiliates directly or indirectly in any press release, public announcement or public disclosure relating to the Agreement, including in any promotional, advertising or marketing materials, customer lists or business presentations, without the prior written consent of Customer or its Affiliates prior to each such use or reference.
12. DEFINITIONS. The words "day", "month", "quarter" and "year" mean, respectively, calendar day, calendar month, calendar quarter and calendar year. The words "include" and "including" shall not be construed as terms of limitation and introduce a non-exclusive set of examples. The word "or" shall not be exclusive. Capitalized terms used herein but not defined herein shall have the meanings set forth in the applicable Order Form. The following terms, when used in the Agreement shall have the meanings specified below:
12.1. "Agreement" means, collectively, this Master Agreement, including its Exhibits and Attachments, and the Order Forms.
12.2. "Affiliate" means, generally, with respect to any entity, any other entity Controlling, Controlled by or under common Control with such entity.
12.3. "Cloud Fee" means the fees for the Cloud Services as specified in the applicable Order Form.
12.4. "Cloud Services" means the subscription-based, hosted, supported and operated on-demand solution with respect to the Selerant Cloud provided by Company under an Order Form, including the Maintenance Services and other support services (if any) specified in the applicable Order Form.
12.5. "Company" means the Selerant entity specified on the applicable Order Form.
12.6. "Company Indemnitees" means Company, its Affiliates and their respective officers, directors, employees, agents, representatives, successors and assigns.
12.7. "Control" and its derivatives means: (a) the legal, beneficial, or equitable ownership, directly or indirectly, of (i) at least fifty percent (50%) of the aggregate of all voting equity interests in an entity or (ii) equity interests having the right to at least fifty percent (50%) of the profits of an entity or, in the event of dissolution, to at least fifty percent (50%) of the assets of an entity; (b) the right to appoint, directly or indirectly, a majority of the board of directors; (c) the right to control, directly or indirectly, the management or direction of the entity by contract or corporate governance document; or (d) in the case of a partnership, the holding by an entity (or one of its Affiliates) of the position of sole general partner.
12.8. "Controller" means a natural or legal person, public authority, agency or other body that, alone or jointly with others, determines the purposes and means of the processing of Personal Data. For purposes of the Agreement, where Customer acts as a Processor for another Controller, it shall in relation to Company be deemed to be an additional and independent Controller with the respective Controller rights and obligations under the Agreement.
12.9. "Current Release" means the most current Release of the Software.
12.10. "Customer" means the customer specified on the applicable Order Form.
12.11. "Customer Data" means any content, materials, data and information that Authorized Users enter into (a) the Software or (b) the production system of the Selerant Cloud or Customer Private Cloud, or that Customer derives from its use of and stores in the Selerant Cloud or Customer Private Cloud (e.g., Customer specific reports), in all cases excluding any Confidential Information of Company or other Company-owned materials.
12.12. "Customer Private Cloud" means a cloud computing environment provided by Customer or made available to Customer under the terms of a separate agreement with a third party provider.
12.13. "Data Protection Law" means the applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the processing of Personal Data under the Agreement.
12.14. "Data Subject" means an identified or identifiable natural person as defined by Data Protection Law.
12.15. "Database Software" means Oracle Database or Microsoft SQL computer programs and procedures developed respectively by Oracle Corporation and Microsoft Corporation, the use of one of which may be required for the operation of the Software.
12.16. "Deliverables" means Work Product that is expressly identified as a deliverable under the applicable Statement of Work for delivery to Customer.
12.17. "Documentation" means the operating manuals, customer instructions, technical literature and all other related materials in eye-readable form only as supplied to Customer by Company for aiding the use and application of the Materials and Services, as applicable.
12.18. "License Fee" means the fee payable by Customer for the Software licenses, as specified in the applicable Order Form.
12.19. "Light Named User" means a Named User with view-only rights to the Software or Materials and, if and to the extent agreed by the parties, the right to approve product specifications when the necessary module is available in the License profile.
12.20. "Location" means (a) with respect to Software installed on Customer's premises or hosted in the Customer Private Cloud, the location(s) where the Software is to be delivered and installed; and (b) with respect to Materials and Services made available to Customer as part of the Cloud Services, the Customer location(s) where such Materials and Services are to be accessed and used by Customer.
12.21. "Losses" means all losses, liabilities, damages (including punitive and exemplary damages), fines, penalties, interest and claims (including taxes), and all related costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, experts, settlement, judgment, interest and penalties).
12.22. "Maintenance and Support Fee" means the fee for the Maintenance Services as specified in the applicable Order Form.
12.23. "Maintenance Services" means those services to be provided by Company to Customer under the applicable Order Form pursuant to the terms and conditions outlined in Exhibit 2 (Maintenance and Support Terms).
12.24. "Managed Services" means the services provided by Company to manage the applicable Software for Customer as further defined under the applicable Order Form.
12.25. "Materials" means the Software, Documentation and any other materials provided or developed by Company (independently or with Customer's cooperation) under the applicable Order Form.
12.26. "Named User" is defined as an individual authorized by Customer to use the server programs that are installed on a single server or on a server farm, regardless of whether the individual is actively using the Software at any given time. Each non-human operated device will be counted as a Named User in addition to all individuals authorized to use the server programs, if such device can access the Software. If multiplexing hardware or software (e.g., a TP monitor or a web server product) is used, this number must be measured at the multiplexing front end. Depending on the specific features of the Software and on Customer's indications about the kind and profile of its authorized users, the Named User can be enabled by Company to activate one or more different user profiles, each of them allowing access to a specific limited set of modules and functions of the Software, which might not correspond to the whole of the modules and functions of the Software as provided in the applicable specifications. As a consequence, the License Fee for the single Named User might be construed pursuant to the width of the functions enabled in the corresponding assigned user profile.
12.27. "Order Form" means all written order forms for Materials and Services entered into by Company and Customer containing the pricing and other specific terms and conditions applicable for the Materials and Services under the applicable Order Form.
12.28. "Personal Data" means any information relating to a Data Subject that is protected under Data Protection Law. Personal Data is a subset of Customer Data.
12.29. "Processor" means a natural or legal person, public authority, agency or other body that processes Personal Data on behalf of the Controller, be it directly as Processor of a Controller or indirectly as Subprocessor of a Processor that processes Personal Data on behalf of the Controller.
12.30. "Professional Services" means those services as further defined by the specific Statement of Work provided to Customer under an Order Form that references this Master Agreement.
12.31. "Release" means any subsequent update, improvement, addition, modification, adaptation or development of the Software made available by Company to Customer pursuant to Exhibit 2 (Maintenance and Support Terms).
12.32. "Selerant Cloud" means a cloud computing environment provided by Company (or a third party on behalf of Company) and made available to Customer under the applicable terms of the Agreement.
12.33. "Selerant Compliance Cloud" means Company's web-based global regulatory compliance application for the food industry.
12.34. "Services" means, collectively, the Cloud Services, Managed Services, Maintenance Services and Professional Services, as applicable.
12.35. "Software" means all computer programs and procedures developed by Company, owned by Company and/or licensed by third parties to Company, and offered by Company to Customer in accordance with the relevant terms of the Agreement. As specified in the applicable Order Form, Software may be (a) licensed on a perpetual or subscription basis and installed on Customer's premises or hosted in the Customer Private Cloud; or (b) licensed on a subscription basis and hosted in the Selerant Cloud.
12.36. "Standard Contractual Clauses" means the Standard Contractual Clauses or any subsequent version thereof published by the European Commission. The Standard Contractual Clauses in effect as of the Update Date are available at https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/standard-contractual-clauses-scc_en.
12.37. "Statement of Work" means the document that is provided with and becomes part of the applicable Order Form that further defines the scope of Managed Services or Professional Services and Deliverables to be provided and other engagement specifics.
12.38. "Subprocessor" means an Affiliate of Company, or a third party engaged by Company or its Affiliates in connection with the Cloud Services, that processes Personal Data in accordance with Exhibit 4 (Data Processing Agreement).
12.39. "Subscription Period" means the term of a subscription for Materials and Services identified in the applicable Order Form, including all renewals.
12.40. "Supplier User" means an individual representative from a third party supplier of Customer who has been granted access to the Software, subject to and in accordance with this Agreement and Company's standard policies and procedures.
12.41. "Term" means (a) with respect to Materials and Services licensed on a perpetual basis, as specified in the applicable Order Form, the term of the applicable Order Form; and (b) with respect to Materials and Services licensed on a subscription basis, as specified in the applicable Order Form, the applicable Subscription Period.
12.42. "Usage Metrics" means the standard of measurement for determining the permitted use and calculating the fees due for the Software and/or Maintenance Services as set forth in the applicable Order Form.
12.43. "Work Product" means any work product or tangible results produced by or with Company pursuant to the Agreement, including works created for or in cooperation with Customer.
13. REGIONAL TERMS. Customer agrees to the following modifications to the Agreement if Company is Selerant Asia Corporation and Customer’s billing address is in the People’s Republic of China (excluding Taiwan, Hong Kong and Macau):
"8.6 Injunctive Relief. Recipient hereby acknowledges that unauthorized disclosure or use of Disclosing Party's Confidential Information will cause immediate and irreparable harm to Disclosing Party. Accordingly, Disclosing Party shall have the right to seek and obtain preliminary and final injunctive relief to enforce the Agreement in case of any actual or threatened breach by Recipient of this Section 8, in addition to other rights and remedies that may be available to Disclosing Party."
"11.7 Intentionally Omitted."
"11.14 Governing Law and Construction; Consent to Jurisdiction. The parties agree that this Agreement will be governed by, and construed in accordance with, the laws of the People's Republic of China (excluding the laws of Taiwan, Hong Kong and Macao), without reference to its conflict of law provisions. Any dispute arising out of or in connection with this Agreement shall first be settled by the parties through friendly negotiations in good faith. If no settlement can be reached within fifteen (15) days from the date when either party notifies the other party in writing to request negotiation, such dispute shall be submitted to the Shanghai Arbitration Commission for arbitration in accordance with its arbitration rules in force at that time. The arbitration tribunal shall be composed of one (1) arbitrator. Arbitration shall be conducted in Chinese. The arbitration award shall be final and legally binding upon both parties."
Last updated June 27, 2022 (the "Update Date").
Exhibit 1
Software License Terms
1. TERM AND RENEWAL.
1.1. Term. The Software and other Materials shall be provided, subject to and in accordance with the terms of the Agreement, for the Term stated in the applicable Order Form.
1.2. Renewal of Subscription Period. With respect to Software and other Materials licensed to Customer on a subscription basis, unless otherwise specified in the applicable Order Form, upon expiration of the then-current Subscription Period, the Subscription Period will automatically renew for additional Subscription Periods of one (1) year each unless a party provides the other party with at least ninety (90) days prior written notice of its intention not to renew.
2. LICENSE FEE.
2.1. Customer shall pay the License Fee in consideration of the License granted hereunder. Unless otherwise specified in the applicable Order Form, Company shall invoice Customer for the License Fee for (a) perpetual Licenses (the "Perpetual License Fee") upon the Effective Date of the applicable Order Form and (b) subscription Licenses (the "Subscription License Fee") annually in advance beginning upon the Effective Date of the applicable Order Form.
2.2. Upon at least thirty (30) days' prior written notice to Customer, Company may increase the Subscription License Fee beginning at the end of the initial Subscription Period; provided, however, that Company shall not increase the Subscription License Fee more than once each in any twelve (12) month period. Within thirty (30) days after Customer's receipt of such notice, Customer may elect to terminate the applicable subscription Licenses upon written notice to Company.
2.3. In the event Customer purchases additional Software licenses under the Agreement, Company may immediately invoice Customer for the additional License Fee.
3. SOFTWARE WARRANTY.
3.1. Company warrants that, for a period of ninety (90) days following the date the Software is initially made available to Customer (the "Warranty Period"), when properly installed and used by Customer, the Software will substantially operate as described in the applicable Documentation. If Customer notifies Company during the Warranty Period of any breach of said warranty, Company shall use reasonable efforts to remedy any material defect or error in the Software at its own expense and within a reasonable time after receiving such notice from Customer, but only if: (a) Customer is fully compliant with its payment and other obligations under the Agreement; (b) Customer, at Company's request, promptly provides Company with documentation of the alleged defect or error; (c) Customer provides Company with complete information regarding the circumstances surrounding the alleged defect or error and cooperates fully in recreating the environment in which the alleged defect or error in question arose; and (d) the alleged defect or error does not result from or relate to: (i) any failure by Customer to perform its obligations under the Agreement; (ii) the incorrect use of the Software or other Materials, or database or operator error; (iii) the use of software other than the Current Release of the Software, use of equipment, programs, products or services that have not been approved or supplied by Company; (iv) the unauthorized modification or maintenance of the Software; (v) operation of the Software outside Company's recommended operating procedures and environmental specifications; (vi) improper site preparation or maintenance; or (vii) accident, neglect, hazard, misuse, natural calamity, or failure or fluctuation of electrical power or environmental conditions.
3.2. In the event that Company is unable to cure any material defect or error in the Software within a reasonable period of time, Customer's sole and exclusive remedy shall be to terminate, upon thirty (30) days' written notice to Company, its access to and use of the applicable Software and Maintenance Services and receive a pro-rata refund of the pre-paid Maintenance and Support Fee for the remainder of the then-current Subscription Period.
ATTACHMENT 1.1
ORACLE SOFTWARE COLLATERAL LICENSE AGREEMENT
This Oracle Software Collateral License Agreement (the "Oracle License Agreement") is effective as of the Effective Date of the applicable Order Form and is entered into by and between Company and Customer. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Master Agreement.
WHEREAS, the parties have entered into that certain Master Services and Software Agreement (the "Master Agreement").
WHEREAS, this Oracle License Agreement is attached to and hereby made part of the Master Agreement.
WHEREAS, the Materials and Services require the installation and use of Oracle Database Software ("Oracle Software").
WHEREAS, Oracle granted to Company the right to distribute Oracle Software to its customers in conjunction to their use of the Materials and Services, as applicable, on the basis of an application specific license.
WHEREAS, the use of Oracle Software is subject to certain terms and conditions provided by Oracle, which Company's similarly situated customers are required to adhere to in addition to the terms and conditions in the Master Agreement.
NOW THEREFORE, in consideration of the mutual covenants set forth herein, and intending to be legally bound, the parties hereto agree as follows:
(1) The use of Oracle Software is permitted only by Customer (i.e., the legal entity that executed the Master Agreement).
(2) The use of Oracle Software is limited to the scope of the License, including, without limitation, to the internal business operations of Customer.
(3) Oracle or its licensor retains all ownership and intellectual property rights to the Oracle Software.
(4) Customer shall not assign, give, or transfer Oracle Software and/or any services ordered or an interest in it to another individual or entity.
(5) Customer shall not (a) use Oracle Software for rental, timesharing, subscription service, hosting, or outsourcing; (b) remove or modify of any program markings or any notice of Oracle's or its licensors' proprietary rights; (c) make Oracle Software available in any manner to any third party for use in the third party's business operations (unless such access is expressly permitted for the specific program license).
(6) Customer shall not reverse engineer, disassemble or decompile Oracle Software (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs) and duplicate Oracle Software except for a sufficient number of copies of each program for the end user's licensed use and one copy of each program media.
(7) Oracle's liability is disclaimed, to the extent permitted by applicable law, for (a) any damages, whether direct, indirect, incidental, special, punitive or consequential, and (b) any loss of profits, revenue, data or data use, arising from the use of Oracle Software.
(8) Upon termination of the Master Agreement, Customer shall immediately discontinue the use of Oracle Software and destroy or return to Company all copies of Oracle Software and its documentation.
(9) Customer shall not publish any results of benchmark tests run on Oracle Software.
(10) Customer shall comply fully with all relevant export laws and regulations of the United States and other applicable export and import laws to assure that neither Oracle Software, nor any direct product thereof, are exported, directly or indirectly, in violation of applicable laws.
(11) Customer acknowledges that Oracle Software is subject to a restricted license and can only be used in conjunction with the Materials and Services, as applicable.
(12) Customer acknowledges that Oracle cannot be required to perform any obligations or incur any liability not previously agreed to between Company and Oracle.
(13) Customer shall: (a) permit Company to audit Customer's use of Oracle Software, (b) provide Company with reasonable assistance and access to information in the course of such audit and (c) permit Company to report the audit results to Oracle or to assign its right to audit Customer's use of the Oracle Software to Oracle.
(14) Notwithstanding Section 11.16 of the main body of the Master Agreement, Customer acknowledges that Oracle is designated as a third party beneficiary of this Oracle License Agreement.
(15) Customer acknowledges that Oracle Software may include source code that Oracle may provide as part of its standard shipment of such programs, which source code shall be governed by the terms of this Oracle License Agreement.
(16) Customer acknowledges that third party technology that may be appropriate or necessary for use with Oracle Software is specified in the applicable Documentation or as otherwise notified by Company and that such third party technology is licensed to Customer only for use with the Materials and Services, as applicable, under the terms of the license agreement specified in the applicable Documentation or as otherwise notified by Company and not under the terms of this Oracle License Agreement or the Master Agreement.
(17) Customer is responsible for its employees', agents', contractors', outsourcers', customers' and suppliers' use of Oracle Software in connection with the Materials and Services and full compliance with this Oracle License Agreement.
(18) Customer acknowledges that, unless otherwise specified in this Oracle License Agreement, all terms and conditions provided in the Master Agreement shall apply to Oracle Software as well.
EXHIBIT 2
MAINTENANCE AND SUPPORT TERMS
Company will provide Customer with up to five (5) days of remote support services per each twelve (12) month period to assist Customer in evaluating the innovation capabilities of the latest Software enhancements and how these may be deployed for Customer's business process requirements. Details such as the exact date and time of such services shall be mutually agreed.
Service Level Name |
Service Level |
Initial Response Time – Severity 1 |
95% within 1 hour (measured during Support Hours) |
Initial Response Time – Severity 2 |
95% within 4 hours (measured during Support Hours) |
Corrective Action Time – Severity 1 |
95% within 4 hours (measured during Support Hours) |
"Severity 1" means a problem that causes substantial Customer production system downtime, system halts, data loss or corruption that renders the Software entirely unusable or non-functional and that can cause serious losses of service.
"Severity 2" means a problem where Customer's system is functioning but in a severely reduced capacity. Severity 2 errors have significant impact to portions of Customer's business operations and productivity. The system is exposed to potential loss or interruption of service.
"Severity 3" means a medium-to-low impact problem that involves partial non-critical functionality loss. One that impairs some operations but allows Customer to continue to function. It may be a minor issue with limited loss or no loss of functionality or impact to Customer's operation, or an issue in which there are means of circumvention or avoidance by Customer.
Exhibit 3
Cloud Services Terms
1. PROVISIONING OF SERVICES.
1.1. Cloud Services. Company shall provide access to the Cloud Services as described in the Agreement.
1.2. Security. Company shall use reasonable security technologies in providing the Cloud Services. As a data Processor, Company shall implement technical and organizational measures designed to secure Personal Data processed in the Cloud Services in accordance with applicable Data Protection Law.
1.3. Modifications. Company may modify the Cloud Services at any time in its sole discretion. Company may inform Customer of such modifications in the same manner that Company uses to inform its customers generally (e.g., by email, the support portal, release notes, Documentation, through the Cloud Services themselves, etc.). No modification shall result in a material reduction to the overall performance of the Cloud Services in the then-current Subscription Period
1.4. Data Center Location. The applicable Order Form shall specify the data center location(s) within which the production instance(s) of the Selerant Cloud will reside.
1.5. Third Party Content. The Cloud Services may include integrations with, or links to, web services made available by third parties that are accessed through the Cloud Services and subject to terms and conditions with those third parties ("Third Party Content"). Third Party Content is not part of the Cloud Services and the Agreement does not apply to it. Customer acknowledges and agrees that its access to and use of Third Party Content shall be entirely at its own risk and Company assumes no liability or responsibility with respect to any Third Party Content.
1.6. Access to Customer Data Hosted in the Selerant Cloud. For purposes of clarity, this Section only applies to Customer Data hosted in the Selerant Cloud. Customer Data hosted in the Customer Private Cloud is subject to separate terms between Customer and the applicable third party provider of such Customer Private Cloud.
1.6.1. During the Subscription Period, Customer may access its Customer Data in the Selerant Cloud, and may export and retrieve its Customer Data in a standard format. Export and retrieval may be subject to technical limitations, in which case the parties shall find a reasonable method to allow Customer to access its Customer Data.
1.6.2. Prior to expiration of the then-current Subscription Period or the effective date of termination, Customer may use Company's self-service export tools (as available) to perform a final export of Customer Data from the Selerant Cloud. Upon the expiration or termination of the Subscription Period: (a) Customer shall no longer be permitted to access or use the Selerant Cloud; and (b) Company may delete or render inaccessible any remaining Customer Data in the Selerant Cloud (except to the extent applicable law requires retention).
1.6.3. In the event of third party legal proceedings related to Customer Data in the Selerant Cloud, Company shall cooperate with Customer and comply with applicable law (both at Customer's expense) with respect to handling of such Customer Data. If Customer requests assistance from Company to access, export or retrieve such Customer Data, Company may invoice, and Customer shall pay, for such assistance at Company's then-current rates.
2. SUBSCRIPTION PERIOD AND RENEWAL.
2.1. Subscription Period. Company shall provide the Cloud Services, subject to the terms of the Agreement, for the Subscription Period stated in the applicable Order Form.
2.2. Renewal. Unless otherwise specified in the applicable Order Form, upon expiration of the then-current Subscription Period, the Subscription Period will automatically renew for additional Subscription Periods of one (1) year each unless a party provides the other party with at least ninety (90) days prior written notice of its intention not to renew.
3. FEES.
3.1. Cloud Fee. Customer shall pay the Cloud Fee in consideration of the Cloud Services granted hereunder. Unless otherwise specified in the applicable Order Form, Company shall invoice Customer for the Cloud Fee annually in advance beginning upon the Effective Date of the applicable Order Form.
3.2. Beginning upon the first anniversary of the Effective Date of the applicable Order Form, Company may increase the Cloud Fee by giving Customer not less than thirty (30) days' prior written notice; provided, however, that Company shall not increase the Cloud Fee more than once in any twelve (12) month period. Within thirty (30) days after Customer's receipt of such notice, Customer may elect to terminate the Cloud Services upon written notice to Company.
3.3. In the event Customer purchases additional Cloud Services under the applicable Order Form, Company may immediately invoice Customer for the additional Cloud Fee on a pro-rata basis based on the number of days remaining in the then-current Subscription Period.
4. CLOUD SERVICES WARRANTY.
4.1. Company warrants that, when properly, accessed and used by Customer, the Cloud Services will substantially operate as described in the applicable Documentation. If Customer notifies Company of any breach of said warranty, Company shall use reasonable efforts to remedy any material defect or error in the Cloud Services at its own expense and within a reasonable time after receiving such notice from Customer, but only if: (a) Customer is fully compliant with its payment and other obligations under the Agreement; (b) Customer, at Company's request, promptly provides Company with documentation of the alleged defect or error; (c) Customer provides Company with complete information regarding the circumstances surrounding the alleged defect or error and cooperates fully in recreating the environment in which the alleged defect or error in question arose; and (d) the alleged defect or error does not result from or relate to: (i) any failure by Customer to perform its obligations under the Agreement; (ii) the unauthorized or incorrect use of the Cloud Services, or database or operator error; (iii) the use of software other than the Current Release of the Software or the use of computer equipment, products or services that have not been approved or supplied by Company; (iv) operation of the Cloud Services outside Company's recommended operating procedures and environmental specifications; or (v) accident, neglect, hazard, misuse, natural calamity, or failure or fluctuation of electrical power or environmental conditions.
4.2. In the event that Company is unable to cure any material defect or error in the Cloud Services within a reasonable period of time, Customer's sole and exclusive remedy shall be to terminate its access to and use of the applicable Cloud Services upon thirty (30) days written notice to Company and receive a pro-rata refund of the pre-paid Cloud Fee for the remainder of the then-current Subscription Period.
4.3. Selerant Compliance Cloud. Customer acknowledges and agrees that Company shall not be liable or responsible for content accessible through Selerant Compliance Cloud and that such content is: (a) information of a general nature and not intended to address the specific circumstances or requirements of Company or any other entity or individual; (b) not necessarily accurate, complete, comprehensive or up to date; (c) mainly linked to external sites over which Company has no control; (d) not legal or professional advice; and (e) intended to be an initial reference source only. Company's Privacy Policy (currently available at https://www.traceone.com/terms-of-service ) explains how Company may use certain Personal Data that Customer provides to Company when Customer logs‐in to and uses Selerant Compliance Cloud, and how Company will protect the privacy of such data. By using Selerant Compliance Cloud, Customer agrees that Company can use such data in accordance with its Privacy Policy, as amended from time to time, and the other applicable provisions of the Agreement.
4.4. Notwithstanding Section 11.5 (Notices) of the main body of the Master Agreement, Company may give notices applicable to its cloud services customer base by means of a general notice (e.g., on Company's portal for the Cloud Services), and notices specific to Customer by email to the address specified in the applicable Order Form.
EXHIBIT 4
DATA PROCESSING AGREEMENT
ATTACHMENT 4.1
DESCRIPTION OF PROCESSING
|
Cloud Services |
Maintenance Services |
Managed Services |
Professional Services |
Data Exporter |
Customer, which subscribes to the Cloud Services and allows Authorized Users to enter, amend, use, delete or otherwise process Personal Data, is the data exporter. Where Customer allows other Controllers to also use the Cloud Services, such other Controllers are also data exporters. |
Customer, which benefits from the applicable Services, is the data exporter. Where Customer allows other Controllers to use the applicable Services, such other Controllers are also data exporters. |
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Data Importer |
Company and its Subprocessors, which provide the Cloud Services, are the data importers. The Cloud Services include the following support: · Monitoring the Cloud Services; · Backup and restoration of Customer Data stored in the Cloud Services; · Release and development of fixes and upgrades to the Cloud Services; · Monitoring, troubleshooting and administering the underlying Cloud Services infrastructure and database; and · Security monitoring, network-based intrusion detection support and penetration testing. Company provides support when Customer submits a support ticket because the Cloud Services are not available or not working as expected for some or all Authorized Users. Company answers phones and performs basic troubleshooting, and handles support tickets in a tracking system that is separate from the production instance of the Cloud Services. |
Company and its Subprocessors, which provide the applicable Services, are the data importers. · Maintenance Services include providing support when Customer submits a support ticket because the Software is not working as expected. · Managed Services include monitoring and supporting the applicable Software as further defined in the applicable Order Form. · Professional Services include providing certain services related to the Software as further defined in a Statement of Work attached to the applicable Order Form. |
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Data Subjects |
Unless provided otherwise by the data exporter, transferred Personal Data relates to the following categories of Data Subjects: · Employees; · Contractors; · Business partners; or · Other individuals whose Personal Data is stored in the Cloud Services. |
Unless provided otherwise by the data exporter, transferred Personal Data relates to the following categories of Data Subjects: · Employees; · Contractors; · Business partners; or · Other individuals whose Personal Data is accessed by or provided to the data importer. |
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Categories of Data |
The data exporter determines the categories of data that could be transferred to the data importer. Transferred Personal Data typically relates to the following categories of data: · Name; · Phone number; · Email address; · Time zone; · Address data; · System access / usage / authorization data; · Company name; · Contract data; · Invoice data; and · Application specific data that is transferred by Customer's users or recipients of the applicable Services (e.g., bank account data, credit card data, debit card data, etc.). |
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Special Categories of Data |
Any special categories of transferred Personal Data shall be set forth in the applicable Order Form. |
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Processing Operations |
Unless otherwise agreed in the applicable Order Form, the transferred Personal Data shall be subject to the following basic processing activities: · Setting up, operating, monitoring and providing the Cloud Services; · Providing consulting services; · Communicating to Authorized Users; · Storing Personal Data in dedicated data centers; · Uploading fixes or upgrades to the Cloud Services; · Backing up Personal Data; · Computer processing of Personal Data (e.g., data transmission, data retrieval, data access, etc.); · Network access to allow Personal Data transfer; · Verifying compliance with the terms and conditions of the Agreement; · Testing and applying new product or system versions, patches, updates and upgrades; · Consulting; · Monitoring and testing system use and performance; · Resolving bugs and other issues; · Complying with applicable legal requirements; and · Execution of Customer's instructions in accordance with the Agreement. |
Transferred Personal Data shall be subject to the basic processing activities described in the Agreement, which may include: · Use of Personal Data to provide the applicable Services; · Storage of Personal Data; · Computer processing of Personal Data for data transmission; and · Execution of Customer's instructions in accordance with the Agreement. |
ATTACHMENT 4.2
TECHNICAL AND ORGANIZATIONAL MEASURES
Exhibit 5
managed services terms
Exhibit 6
Professional Services Terms