SOFTWARE AS A SERVICE (SaaS) AGREEMENT
GENERAL TERMS AND CONDITIONS FOR CONTRACTING THE SERVICES
These General Terms and Conditions of Service apply to all SaaS Software Contracts formalized between Foreworth Limited, incorporated and registered in United Kingdom, with registration number 14453865 and with registered office at 67 Minchenden Crescent, London, England, N14 7EP, as a company providing SaaS Software Services (the "OWNER") and the CLIENT who hires these services.
GENERAL TERMS AND CONDITIONS
1.- Terms Definition and Interpretation.
1.1.- The definitions and rules of interpretation of this clause apply in this SaaS Agreement (the "SaaS Agreement"):
1.2.- These General Terms and Conditions apply to all Order Forms and/or agreements concluded by the OWNER and the CLIENT. Any exceptions to these General Terms and Conditions by the CLIENT will be valid only if requested previously in writing and the OWNER accepts them in the same way. Any exceptions agreed in this way shall apply only to the specific Order Form or agreement at stake and shall not be extended to other Order Form(s) or agreement(s), past or future.
In no case will any general condition(s) the CLIENT may establish for its suppliers, clients, etc., apply to the Services. Likewise, conditions, specifications or regulations included in CLIENT’S work certificates, invoices or, in general, in any document exchanged between the parties under the Order Form(s) will not apply to the Services if contradict these General Terms and Conditions.
1.3.- If any provision, clause or addendum of this SaaS Contract refers to or requires any action, consent or notification by one of the Parties it must be made in writing. Communications must be expressly admitted if they are conducted by electronic means with confirmation of delivery and addressed exclusively to the addresses set forth herein for notification purposes.
1.4.- In case of conflict or contradictions between these General Terms and Conditions and the terms of the Order Form the latter will prevail.
2.- Duration and Validity.
The duration and validity of this SaaS Agreement and the Services will begin on the Signature Date of the the corresponding Order Form and will remain in force until the end of the Services, as established below.
This SaaS Agreement shall be automatically extended for periods of 12 months at the end of the Subscription Period, unless either party notifies the other in writing of its willingness not to extend it, with 90 calendar days' prior written notice before the end of the Subscription Period.
If this SaaS Contract is tacitly renewed a new Subscription Period will begin for a duration of 12 months, and the CLIENT must pay the Renewal Fees to the OWNER in accordance with the provisions of number 8 of these General Terms and Conditions.
3.- Non-Exclusive License to Use the Software for Connected Application(s) Analysis Purposes.
3.1.- The OWNER hereby grants the CLIENT a non-exclusive, revocable, non-sublicensable and non-transferable license to use the Software indicated in the Order Form. This license allows Authorized Users expressly identified by the CLIENT only to reproduce the Software in order to access the result(s) of the analysis the Software makes of the Connected Application(s), within the CLIENT’S internal scope, in one or more Repositories only specified in the corresponding Order Form, during the Subscription Period.
The license granted on the Software has a Minimum Subscription Period of one (1) year from the signature of the Order Form by the CLIENT. The CLIENT expressly accepts that the amount paid for such Minimum Subscription (1) one-year period is not refundable (neither totally or partially).
Subject to the terms and conditions of this SaaS Agreement, during the term of the Services the OWNER will use commercially reasonable efforts to provide:
The rights provided for in this Clause 3 are granted to the CLIENT only and to the Authorized Users, which he will have expressly and nominally designated in the corresponding Order Form. Consequently, the CLIENT cannot use the Software in other companies or by other users different from the Authorized Users (i.e., the license is not granted to any CLIENT’s subsidiary or parent company)(.
4.1 Analysis of Connected Application(s). The Software will analyze the Connected Application(s) specified in the Order Form(s) and provide the CLIENT with general financial, technical and business performance information through the CLIENT’s user interface, without decompiling or reverse engineering the Connected Applications.
4.2- Support. The OWNER will provide general support to the CLIENT through an email address specified by the OWNER and a proactive engagement service to help the client to use the Software.
4.3- Premium support. The CLIENT may contract an improved version of the Support Service, which in addition to the Services specified in clause 4.2 above, includes a dedicated CLIENT account manager, video calling services and other additional services as defined in the corresponding Order Form(s).
4.4 Update Services. The OWNER will update the Software regularly to troubleshoot, provide new features, and generally improve the Software.
4.5.- Detail of the Services. Each applicable Order Form will specify in more detail the Services to be provided in accordance with the representations and warranties set forth herein, and will identify the limitations, the Fees, the Subscription Period and other applicable particular terms and conditions.
5.- Services Conditions.
5.1. For the OWNER.
5.1.1.- The OWNER guarantees that it has and will maintain all licenses, consents and permits necessary for the fulfillment of its obligations under this SaaS Agreement.
5.1.2.- THE OWNER will access the CLIENT’s Repository using appropriate security protocols according to market standards.
5.1.3.- The OWNER may collect information related to the CLIENT’s organizational structure performance for conducting benchmarking studies. This information will only be made publicly available if it does not identify the CLIENT and is not subject to confidentiality obligations pursuant to this SaaS Agreement.
5.1.4.- The OWNER must comply with all applicable laws regarding to this SaaS Contract, maintaining all necessary and appropriate authorizations for the provision of the Services.
5.1.5.- The OWNER agrees to use the Source Code exclusively for the purpose of analysis to facilitate the extraction of proprietary metrics and may not make copies of it for any other purpose, nor distribute, sublicense, sell, lease, lend or transfer the Source Code to third parties. Once the analysis of the Source Code is complete, THE OWNER will destroy all the virtual machines where the Source Code has been processed, ensuring that potential recovery of data by third parties is not possible. The OWNER will take all necessary measures to protect the Source Code from any unauthorized use and guarantee its confidentiality. Any breach of these conditions will be considered a material violation of this Contract and will entitle THE CLIENT to terminate it immediately and to exercise all the corresponding legal actions to assert their rights.
5.2 For the CLIENT.
5.2.1.- The CLIENT will provide access to the OWNER, in read-only mode, to its Repository and to the connected Applications, and guarantees the OWNER that such access by the OWNER will not entail the infringement of any third-party right(s).
5.2.2.- The CLIENT undertakes to provide the OWNER with any information that may reasonably be required, so that the OWNER can fulfill its obligations under this SaaS Contract.
5.2.3.- The CLIENT acknowledges and accepts that the CLIENT is solely responsible for obtaining, maintaining and providing the OWNER with all the authorizations and consents necessary for the OWNER to access the Repository and the Connected Applications,and to be able to provide the Services.
5.2.4.-The CLIENT will refrain from carrying out, by itself or by a third party, the following actions:
5.2.5.- The CLIENT will make all reasonable efforts to prevent any unauthorized access or use of the Software / Services and/or the Documentation and, in case of such unauthorized access or use, will immediately notify the OWNER.
To avoid any doubt in the interpretation of these General Terms and Conditions, the Software and the Services, including all visible aspects of the Software and the Services, are Confidential Information belonging to the OWNER. In that regard, the CLIENT acknowledges and agrees to comply what provided in Clause 6 (Confidentiality) as all these elements constitute Confidential Information.
5.2.7.- The CLIENT must comply with all applicable laws regarding this SaaS Agreement, maintaining all necessary and appropriate authorizations for the Services receipt.
5.2.8.- Cooperation. The CLIENT shall provide all cooperation and assistance that the OWNER may reasonably request to enable the OWNER to exercise its rights and fulfil its obligations under and in connection with this SaaS Agreement. The above includes the provision to the OWNER of access to the CLIENT's facilities, to its information and to the technological infrastructure, to the extent it is necessary for conducting the Services in accordance with this SaaS Agreement.
5.2.9.- CLIENT’s Systems. The CLIENT shall be responsible for obtaining and maintaining, both the functionality and security, of any equipment and ancillary services necessary to connect, access or use the Software, including routers, hardware, servers, software, operating systems, networks, web servers and the like.
6.1.- Confidential information. The Receiving Party understands that the Disclosing Party may provide Confidential Information before or during the execution of this SaaS Agreement.
The OWNER's financial information includes non-public information about the features, functionality and performance of the Software.
The CLIENT's Confidential Information includes non-public data provided by the CLIENT to the OWNER to allow the provision of access and use of the Services, as well as all content, data and information recorded and stored by the CLIENT.
These General Terms and Conditions and this SaaS Agreement, including all related pricing and metrics and any Order Form content constitute OWNER's Confidential Information.
6.2.- Exceptions. Notwithstanding anything to the contrary contained in this SaaS Agreement, Confidential Information will not include any information that:
6.3.- Restrictions on use and disclosure. With respect to the Disclosing Party's Confidential Information, the Receiving Party agrees to:
6.4.- Mandatory disclosure. Notwithstanding as set forth in clause 6.3, the Receiving Party may disclose the Disclosing Party's Confidential Information to the extent necessary to comply with a court order or applicable law. In these cases, if permitted by law, the Receiving Party shall communicate to the Disclosing Party such disclosure, in writing and with reasonable notice, and shall make reasonable efforts to ensure the confidential treatment of the Confidential Information, in whole or in part.
6.5.- Breach of Confidentiality Obligation(s). The Receiving Party acknowledges that failure to comply with its obligation of confidentiality may cause irreparable harm to the Disclosing Party, for which the Disclosing Party may not be fully or adequately compensated by recovering damages through compensation/indemnities/reparations of an economic nature.
Accordingly, in the event of any breach or threat of breach by the Receiving Party of its obligations under this Clause 6 the Disclosing Party shall have the right to seek injunctive relief before the competent courts, in addition to any other remedies that may be available at law or in equity.
7.- Property and Intellectual Property Rights.
7.1. The copyright, exploitation rights and all rights derived from property, both intellectual and industrial, as well as the business secrets that fall on the Software, its preparatory and technical documentation, and the manuals of use of the Software, whatever their nature, are the OWNER’s exclusive Intellectual Property. This SaaS Agreement cannot be interpreted as a transmission or an assignment of the aforementioned rights, which will continue to be the exclusive property of OWNER.
7.2.- Intellectual Property Rights Infringement. The OWNER will defend and/or resolve any claim against the CLIENT alleging that the Software supplied under this SaaS Agreement infringes any third-party right(s).
7.3. The OWNER, at its sole discretion, may modify the Software or the Services so that it does not infringe third-party right(s) and is materially similar to the Services.
8.- Price and Payment Terms.
8.1.- The total price for the non-exclusive license to use the Software granted under this SaaS Agreement shall be as indicated in the Order Form. All amounts and Fees shall be payable in euros (€) unless otherwise stated in the Order Form.
8.2. - The amounts mentioned in the previous paragraph do not include Value Added Tax (VAT), the amount of which will be borne, additionally, by the CLIENT, as well as any other tax applicable to the Services.
8.3.- Payment terms. The OWNER will issue the corresponding invoice(s) and the CLIENT must pay them by bank transfer or direct debit within thirty (30) calendar days after the date of issuance of the invoice.
If the OWNER has not received payment within 30 calendar days of the referred due date, and without prejudice to any other OWNER’s rights and remedies:
8.4.- Renewal Fees. At the beginning of each period of renewal of the Services, the CLIENT will be responsible to the OWNER for the payment of the Renewal Fees, being charged for such fees by the OWNER in the means of payment designated by the CLIENT, in common agreement with the OWNER.
The OWNER will calculate the Renewal Fees by applying the prices in force at that time for the number of Authorized Users, Connected Applications and any additional Services purchased by the CLIENT for the Renewal Period.
The OWNER will communicate to the CLIENT the Renewal Fees in writing, at least one (1) month prior to the end of the Subscription Period in force at that time.
9.1.- The CLIENT shall defend and hold the OWNER harmless against claims, actions, proceedings, losses, damages and expenses (including, but not limited to, court costs and attorneys' fees) arising out of or in connection with the misuse of the Services and/or Documentation or with the breach of its legal or contractual obligations.
9.2.- The OWNER, subject to Clause 9.5, will defend the CLIENT against any claim that the CLIENT may receive regarding the infringement of third-party right(s) as a consequence of the use of the Software, and will indemnify the CLIENT for any cost that said claim(s) may entail against the CLIENT, provided that:
9.3.- In the defense or resolution of any claim(s), the OWNER may either seek the right of the CLIENT to continue using the Services or replace/modify the Services. If such remedies are not reasonably available, the OWNER may terminate this SaaS Agreement, without any additional liability or obligation to pay damages or other additional costs to the CLIENT.
9.4.- In no case will the OWNER, its employees, agents and/or subcontractors be liable to the CLIENT to the extent that the alleged infringement is based on:
9.5.- The foregoing establishes the unique and exclusive rights and remedies of the CLIENT, and the obligations and full responsibilities of the OWNER (including employees, agents and/or subcontractors of the OWNER), for the infringement of any Intellectual Property, patent, copyright, trademark, database or right to confidentiality.
10.1.- Both the CLIENT and the OWNER represent and warrant that they have the legal power to enter into this SaaS Agreement, to be bound by these General Terms and Conditions and by each Form Order they both may sign.
10.2.- The OWNER declares and guarantees that he will provide the Services in a professional manner, although the OWNER has no obligation of any result, which the CLIENT expressly acknowledges and agrees.
10.3.- The CLIENT guarantees that:
10.2.- The OWNER will implement the necessary technical and organizational measures in its facilities to guarantee the security of the Software. In this context, security measures shall be adopted in accordance with the state of the art, the nature of the data stored and the risks to which they are exposed.
11.- Limitation of Liability.
11.1.- Except as expressly provided in these General Terms and Conditions, neither party offers warranties, representations or conditions, express or implied, including but not limited to the warranties of merchantability, fitness for a particular purpose and any other warranties not expressly set forth in this SaaS Agreement. In addition, the OWNER does not represent or warrant that the Software will be available, accessible, with an uninterrupted, secure, accurate, complete, error-free service or that it will operate without loss of data in transmission, nor does the OWNER guarantee any connection to or transmission from the Internet. The Software and the Services may be subject to limitations, delays, and other problems inherent to the use of the Internet and electronic communications. The OWNER does not accept liability of any kind, including liability for negligence, for the existence, operation, interoperability, facilities or continuous functions or the direct or indirect consequences of any CLIENT using the Internet or any other electronic communications mean(s) or facilities to access and use the Services.
11.2.- Except as expressly provided in this document or in an Order Form, the OWNER does not offer any guarantee as to the results that can be obtained from the use of the Software and/or the Services. The OWNER is not responsible for delays, delivery failures or any other loss or damage resulting from the transfer of data through communications networks and facilities, including the Internet, and the CLIENT acknowledges that the Services, Software and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities. In addition, the OWNER makes no representations or warranties with respect to services provided by third-party technology service providers related to or endorsing software. The Software and Services are provided "as is," and OWNER disclaims all warranties, express or implied, including, but not limited to, the implied warranties of non-infringement, merchantability, and fitness for a particular purpose, to the fullest extent permitted by applicable law.
11.3.- The total liability of the OWNER (including any liability for the acts or omissions of its employees, agents and/or subcontractors) to the CLIENT with respect to any breach of this SaaS Agreement and/or any use made by the CLIENT of the Services / Software and/or Documentation or any part thereof shall be limited to the total Fees paid by the CLIENT during the period of 12 months immediately prior to the date on which that the corresponding cause of action arose.
11.4.- Except as expressly and specifically provided in this SaaS Agreement, the CLIENT assumes sole responsibility for the results obtained from the use of the Services/Software and the conclusions drawn from such use. The OWNER shall have no liability for damages caused by errors or omissions in any information, instructions or scripts provided to the OWNER by the CLIENT in connection with the Services, or any action taken by the OWNER under the direction of the CLIENT. Owner shall not be liable whether for tort (including negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business and/or similar losses, or loss or corruption of data or information, costs, damages, indirect or consequential charges or expenses arising under this SaaS Agreement.
11.5.- THE OWNER is not responsible for any claim that is notified by the CLIENT with more than three (3) months delay. As some jurisdictions do not allow some of the exclusions set forth in this Section 11, some of these exclusions may not apply to the CLIENT. In the event that any other limitation of liability is found by any competent court to be invalid or unenforceable, the CLIENT acknowledges and agrees that the OWNER's total aggregate liability to the CLIENT shall not exceed the total amount with respect to the OWNER’s maximum coverage under its professional indemnity insurance.
11.6.- The CLIENT and the OWNER expressly acknowledge and agree that all the terms and limitations of this SaaS Agreement, including the limitations and exclusions of warranty and liability, are fair and reasonable in light of the charges to be paid by the CLIENT, the nature of the Services, the negotiating position of each party, the alternative ways in which the CLIENT's needs could have been met and the potential benefits and risks for both parties by entering into this SaaS Agreement.
12.1.- If a party fails to comply with any essential term or condition of this SaaS Agreement and such breach remains unresolved for fifteen (15) business days after receiving written notice, (1) the other Party may terminate this SaaS Agreement. In addition, where the breach results from total or partial non-payment, for any reason, of the amounts due to the OWNER for the Services provided to the CLIENT and said breach was not remedied by the CLIENT within fifteen (15) business days following the OWNER’s request for payment, the OWNER may suspend, with immediate effect, the Services, without the need for prior notification to the CLIENT.
12.2.- The OWNER may terminate the contract in the following circumstances:
12.4.- The CLIENT will be responsible and is obliged to pay all the amounts due for the Services provided by the OWNER until the effective date of the contractual termination, interest included.
13.- Waiver of rights.
13.1.- The waiver of any right under this SaaS Agreement will be effective only if it is made in writing and will apply only to the party to whom the waiver is addressed and to the circumstances for which it is expressly granted.
13.2.-Unless specifically provided otherwise, the rights derived from this SaaS Agreement are cumulative and do not exclude the rights provided for by law.
14.1.- If any provision (or part of a provision) of this SaaS Agreement is declared by any competent court as invalid, unenforceable or illegal the other provisions shall remain in force.
14.2.- If any invalid, unenforceable or illegal provision is valid, enforceable or legal or if any part of it is deleted, the provision willbe applied with any modification that is necessary to comply with the contractual purpose established by the parties.
15.- Entire Agreement.
15.1.- This SaaS Agreement and any document referred to therein, constitute the entire agreement between the parties and supersede any prior agreement, negotiation or discussion of the parties in relation to the Services/Software.
15.2.- Each party acknowledges and agrees that by entering into this SaaS Agreement it does not rely on any commitment, promise, assurance, representation, warranty or prior negotiation (whether in writing or not) of any person (whether party to this SaaS Agreement or not) in relation to the subject matter of this SaaS Agreement, except as expressly set forth in this Agreement.
16.1.- The CLIENT may not, without the prior written consent of the OWNER, assign, transfer, collect, subcontract or otherwise negotiate with all or any of its rights or obligations established under this SaaS Agreement.
16.2.- The OWNER may at any time assign, transfer, collect, subcontract or otherwise negotiate all or any of its rights or obligations under this SaaS Contract and will only have to notify the CLIENT of the assignment.
17.- Rights of Third Parties.
This SaaS Agreement does not confer any rights on any person or party other than the parties to this SaaS Agreement.
18.1.- Any notice to be given under this SaaS Agreement shall be in writing and delivered by post or email with acknowledgment of delivery to the other party at the address set forth in this SaaS Agreement, or at any other address notified by that party for such purposes.
18.2.- A notification delivered by mail will be considered received at the time of delivery (or if the delivery is not in the usual business hours, at 9 am on the first business day following delivery). A notification with the correct address sent by post or registered mail shall be deemed to have been received at the time it would have been delivered in the normal course of the mail. A notification sent by e-mail shall be deemed to have been received at the time of receipt of the delivery confirmation.
19.- Personal Data Protection
In accordance with the applicable data protection regulation (The General Data Protection Regulation 679/2016 and the Data Protection Act 2018), the parties to this SaaS Agreement agree that their personal data (such as identifying information of the representatives, and other essential data), will be processed for the development, maintenance and performance of this SaaS Agreement, as well as for the management of the documentation related to it. The legal basis for the processing of the personal data is the development and performance of this SaaS Agreement.
The data subjects are informed that their personal data will be kept or the duration of the contractual relationship and during the applicable retention periods according to the data protection legislation (term that can be up to five (5) years from this SaaS Agreement termination date; during this last period personal data will be cancelled, in accordance with current legislation). Subsequently, such data must be deleted.
Likewise, the parties guarantee to comply with the duty of information with respect to their employees whose personal data are communicated for the maintenance and performance of the contractual relationship.
Personal data may be communicated by the parties to Public Administrations when required by law and, where appropriate, to financial institutions for the management of payments (as well, the data may be available to third parties, duly authorized to do so through corresponding contracts, in order to execute the obligations to which they are committed) and in the course of providing the services, the personal information may be transferred internationally, in which case, the appropriate levels of security and integrity will be ensured.
Notwithstanding the aforementioned, data subjects’ rights of access, rectification, deletion, opposition, limitation and portability may be exercised by written communication to the registered office stated at the beginning of this document or at the following email address firstname.lastname@example.org. In addition, If you have any concerns about our privacy practices, including how we handle your personal data, you can report them to the UK Data Protection Authority, the Information Commissioner's Office (ICO) or, as the case may be, to any other competent data protection authority.
20.1.- If any clause or section of this SaaS Agreement which is not of an essential nature for its existence is declared null or unenforceable, the validity of the remaining clauses will not be affected by said declaration.
20.2.- This contract constitutes the total agreement of the parties, in relation to its content, annulling all previous negotiations, commitments and writings.
20.3.- The titles of the clauses are mere references, without being considered as interpretation or explanation of their respective contents.
20.4.- For all matters arising from this contract, the parties shall contact the signatories or the authorized representatives of the company. These communications will be addressed, in any case, to the addresses indicated at the beginning.
20.5.- The annexes/schedules are an integral and substantial part of the SaaS Agreement, being the responsibility of the parties the communication of any change of the information contained in them.
21.- Applicable Law and Dispute Resolution.
This SaaS Contract shall be governed by and construed in accordance with English law. The parties shall endeavor to resolve any related disputes amicably. The Parties agree to submit, by expressly waiving any other jurisdiction, to the exclusive jurisdiction of the courts of England and Wales for any dispute, claim or controversy related to this Agreement.