Contactcenter4ALL SAAS AGREEMENT
This software as a Service Agreement (“SaaS Agreement”) is entered into by CUSTOMER on the Effective Date, either indirectly through a Partner or directly with CC4ALL, and governs CUSTOMER’s purchase and use of proprietary SaaS Services, as identified in an Order (all as defined below).
Note that by executing an Order for the purchase of SaaS Services or otherwise using the SaaS Services, CUSTOMER shall be deemed to confirm its acceptance of this SaaS Agreement and CUSTOMER’s Agreement to be a party to this binding contract.
This SaaS Agreement shall be interpreted and applied in accordance with Sections 1 and 2.
1 Definition and Interpretation
In this SaaS Agreement, unless the context otherwise requires:
1. Reference to the parties include their respective successors and permitted assigns;
2. Words in the singular include the plural, and in the plural include the singular;
3. Headings are for ease of reference only;
4. Any reference to “SaaS Agreement” also refers to any amendment or supplement to it;
5. The term “including” means including without limitation;
6. Capitalized words, phrases, and acronyms shall have the meanings given to them in the SaaS Agreement or shall have their ordinary (technical or other) meaning; and
7. Parties have expressly required the SaaS Agreement to be drawn up in English.
1.2 In the case of a conflict between any provision of this SaaS Agreement and any other contract documents, the following descending order of precedence shall apply: (1) the provisions of the body of this SaaS Agreement, (2) the provisions of the attachments, annexes or schedules and (3) the provisions of the order. In case of a conflict between the provisions of the Service Level Agreement and the provisions of this SaaS Agreement, the latter shall prevail.
1.3 “Affiliate” means any entity which directly or indirectly controls, is controlled by or is under common control of the parent company of, as appropriate, CUSTOMER Group or CC4ALL Group. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.4 “CC4ALL” means unless agreed otherwise in the order, CC4ALL BV with its registered offices at Lange Dreef 15, 4131 NJ VIANEN, The Netherlands.
1.5 “CC4ALL Group” means Contactcenter4ALL and its Affiliates in each case from time to time.
1.6 “CC4ALL Software” means, as applicable, the Object Code form of CC4ALL CC4Teams suite or such other CC4ALL software products to which CUSTOMER is provided access as part of the SaaS Services, as identified in an Order, and shall be deemed to include the Documentation
1.7 “Confidential Information”: means all information in any medium or format (including written, oral, visual or electronic, and whether or not marked or described as “confidential”), together with all copies, which relates to a party (the “Disclosing Party”) or to its employees, officers, customers or suppliers, and which is directly or indirectly disclosed by the Disclosing Party to the other party (the “Receiving Party”) in the course of their dealings relating to this SaaS Agreement, whether before or after the date of this SaaS Agreement. However, the following information is not “Confidential Information” for the purposes of this SaaS Agreement: (i) information which is in the public domain other than as a result of breach of this SaaS Agreement or any separate confidentiality undertaking between the parties; (ii) information which the Receiving Party received, free of any obligation of confidence, from a third party which itself was not under any obligation of confidence in relation to that information; and (iii) information which was developed or created independently by or on behalf of the Receiving Party.
1.8 “CUSTOMER” means the (potential) counterparty of CC4ALL that entered into a SaaS Agreement or (directly or indirectly) entered into any negotiations regarding such SaaS Agreement.
1.9 “Content” means information rightfully obtained by CC4ALL from publicly available sources or its third party content providers and made available to CUSTOMER through the Services, beta Services, or pursuant to an Order, as more fully described in the Documentation.
1.10 “Customer Data” means electronic data provided by or on behalf of the CUSTOMER or CUSTOMER Group (or its End Users) to CC4ALL’s SaaS Services and excluding any Content. For clarity purposes, Customer Data is the confidential information of the CUSTOMER.
1.11 “CUSTOMER Group” means CUSTOMER and its Affiliates including CUSTOMER.
1.12 “Data Protection Agreement” or “DPA” means the specific provisions to be agreed between the parties pursuant to Section 11.1, if any, for processing of personal data by CC4ALL on behalf of CUSTOMER.
1.13 “Data Protection Laws” means in relation to any personal data (if any) which is processed in the performance of this SaaS Agreement, the applicable (local) law(s) or any other (local) regulations, guidelines or policies, instructions or recommendations of any competent governmental authority, including any amendments, replacements, updates or other later versions thereof;.
1.14 “Documentation” means the user guides, tutorials, online help, release notes, printed instructions, reference manuals, requirements, and other explanatory materials developed by CC4ALL regarding the use or operation of the SaaS Services.
1.14 “End User” means, as applicable and unless stated otherwise herein, any person or entity (including, for the avoidance of doubt, any employee or agent of CUSTOMER) authorized by CUSTOMER to access or use the Products.
1.15 “Fees” means in respect of each SaaS Agreement, the total sum of fees and charges payable by the CUSTOMER for Products and/or Services as specified in the relevant order (s) or (if appropriate) to be calculated by CC4ALL based on the most current version of the GPL (Global Pricing List).
1.16 “GPL” means the price list issued by CC4ALL to the general business community and/or public as the centralized source of pricing information and license metric (such as, without limitation, the license type) for all Products and Services and other items, all as may be amended from time to time by CC4ALL.
1.17 “Object Code” means the form of CC4ALL software wherein computer programs are assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse-assembly, reverse-compiling, or reverse-engineering.
1.18 “Operational Readiness” means the SaaS platform is operational and ready for configuration.
1.19 “Orders” means an order referencing this SaaS Agreement as may be agreed from time to time with CC4ALL (or a Partner) identifying the SaaS Services, Fees, and other details of each transaction that is subject to and governed by this SaaS Agreement. An order may consist of either (a) a schedule, quotation, or statement of work that has been signed by both CUSTOMER and CC4ALL (or a Partner), and/or (b) if applicable, a purchase order issued by CUSTOMER pursuant to this SaaS Agreement.
1.20 “Partner” means a third party that is authorized and validated by CC4ALL based on a separate and valid Agreement to resell the Products and Services to End Users.
1.21 “Products” means the CC4ALL software and including the SaaS Services.
1.22 “SaaS Agreement” means (as the context requires): (i) this Agreement (including the Exhibits attached hereto), or (ii) the Agreement described under (i) and all Orders, further (SaaS) Agreements, and other contract documents (taken together).
1.23 “SaaS Services” means the subscription cloud-based services identified in the order and that are hosted by CC4ALL or its service provider and made available to CUSTOMER (Group) over a network on a term-use basis, as may be amended by CC4ALL from time to time.
1.24 “Services” means any services provided or to be provided by or on behalf of CC4ALL pursuant to this SaaS Agreement, as identified in an Order.
1.25 “Service Levels” means the service levels as included the SaaS Agreement.
1.26 “Standard Support” means the provision of technical support for issues related to the performance of the CC4ALL software and reported by CUSTOMER or its End Users through a web-based ticket system with a response provided on weekdays between 08:00h and 17:00h CET. Standard Support may require the execution by CUSTOMER of an order. If CC4ALL, at its sole discretion, determines that an issue is solely caused by a malfunction of the CC4ALL Software, CC4ALL will resolve the issue free of charge. In all other situations, CC4ALL’s or (if appropriate) Partner’s assistance in remediating the issues identified will be charged to CUSTOMER subject to CUSTOMER’s execution of a separate Order.
1.27 “Start Date” means, unless agreed otherwise in the order, when CC4ALL informs CUSTOMER about Operational Readiness of the Products. Operational readiness means the SaaS Services platform is operational and ready for configuration.
1.28 “Subscription Period” means the Initial Term or any successive renewal period as described in Section 3.7.
1.29 “Third Party Software” means, if appropriate, the software referred to as redistributable code that is licensed to CC4ALL by third-party licensors for redistribution with the CC4ALL software. The redistributable code is the property of CC4ALL’s licensors property and is protected under international copyright, trade secret or other proprietary rights laws, and international treaties.
1.30 “Term” means any initial term or any renewal term of the Saas Agreement as mutually agreed to by the parties in writing from time to time.
2 Applicability
2.1 This SaaS Agreement shall govern all quotes and Orders between CUSTOMER and CC4ALL for Saas Services. The Saas Agreement is also applicable to the negotiations regarding such quotes or Saas Agreements, even if said negotiations do not result in the conclusion of a Saas Agreement and will accordingly apply to all future trading relationships with CC4ALL, even if they are not communicated as new. CC4ALL may, from time to time, amend the SaaS Agreement as published on the Website. By using the SaaS Services, the CUSTOMER agrees to be bound unconditionally by the terms and conditions of this SaaS Agreement.
2.2 The applicability of any general terms and conditions of CUSTOMER or Partner to any quote, order, or other SaaS Agreement, said negotiations, or the relationship, in general, is hereby excluded. Regardless of their form, deviations from or supplements to the SaaS Agreement shall only apply if parties explicitly agree to the same in writing.
3 SaaS services, restrictions, and terms
3.1 Provision of SaaS Services.
Subject to the terms, restrictions, and limitations outlined in the SaaS Agreement, CC4ALL hereby grants to CUSTOMER a non-exclusive, non-transferable, non-sublicensable, terminable license to access and use (and to permit its End Users to access and use) the SaaS Service during the Subscription Period in accordance with the Documentation, solely for Customer Group’s internal business operations. CUSTOMER agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by CC4ALL with respect to future functionality or features.
3.2 Required software.
CUSTOMER acknowledges that use of the SaaS Service may require the installation of software as a pre-requisite for using the SaaS Service, as specified in the Documentation and/or as advised by CC4ALL or Partner from time to time (“Required Software”) CUSTOMER agrees to install such Required Software, including any required updates if and when available at its own cost.
3.3 End Users.
The customer is responsible for all activities conducted by it or through the accounts of its End Users on the SaaS Service. CUSTOMER shall ensure that the End Users shall abide by the terms of this SaaS Agreement. Any breach by an End User will be deemed to be a breach by the CUSTOMER. CC4ALL may terminate or suspend any End User’s access to the SaaS Service for any violation without notice.
3.4 Restrictions.
CUSTOMER and its End Users shall not, and shall not permit any third party to (i) copy or republish the SaaS Services or Software, (ii) make the SaaS Services available to any person other than properly authorized End Users, (iii) use or access the SaaS Services to provide service bureau, time-sharing or other computer hosting services to third parties,(iv) modify or create derivative works based upon the SaaS Services or Documentation, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SaaS Services or in the Documentation, (vi) reverse engineer, decompile, diemble, or otherwise attempt to derive the source code of the software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law, or (vii) access the SaaS Services or use the Documentation in order to build a similar product or competitive product. Subject to the limited licenses granted herein, CC4ALL shall own all right, title, and interest in and to the Software, Services, Documentation, and other deliverables provided under this SaaS Agreement, including all modifications, improvements, upgrades, derivative works, and feedback related thereto and intellectual property rights therein. Customer agrees to assign all rights, title, and interest it may have in the foregoing to CC4ALL.
3.5 Service Level Agreement.
Parties may agree a Service Level Agreement in a format advised by CC4ALL.
3.6 Customer feedback.
CC4ALL may, from time to time, request CUSTOMER to provide certain information or content by which the End User can be identified when using the SaaS Service, including the control panel and the registration functionality that are compatible with the CC4ALL software. CC4ALL will only use and protect such information in accordance with the DPA. CC4ALL shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the SaaS Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including End Users, relating to the operation of the SaaS Services.
3.7 Term and Subscription Period.
The Term of this SaaS Agreement shall begin on the Effective Date and shall continue for an initial term of 36 months. If not terminated sooner, this SaaS Agreement shall automatically renew at the end of the initial term and shall thereafter continue for successive annual periods until terminated by either party upon not less than thirty (30) days written notice prior to the expiration of the then-current renewal term for cause pursuant to Section 10.1.
4 Customer responsibilities
4.1 Assistance.
CUSTOMER shall provide commercially reasonable information and assistance to CC4ALL to enable CC4ALL to deliver the SaaS Services. The customer acknowledges that CC4ALL’s ability to deliver the SaaS Services in the manner provided in this SaaS Agreement may depend upon the accuracy and timeliness of such information and assistance.
4.2 Compliance with Laws.
CUSTOMER shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and technical or personal data transmission. The customer acknowledges that CC4ALL exercises no control over the content of the information transmitted by CUSTOMER through the SaaS Services, including the Customer Data. CUSTOMER shall and ensure the End Users shall not upload, post, reproduce or distribute any information, software, or other material protected by copyright, trade secret, trademark, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
4.3 Acceptable Use and ID Information.
Customer shall: (i) notify CC4ALL immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (ii) report to CC4ALL immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by CUSTOMER or any End User, and (ii) not provide false identity information to gain access to or use the SaaS Services.
4.4 Administrator Access.
CUSTOMER shall be solely responsible for the acts and omissions of its End Users with an administrator role. CC4ALL shall not be liable for any data loss or functionality caused directly or indirectly by the administrator End Users.
4.5 Customer Data.
Except for CC4ALL’s obligations described in Section 6 and Section 11, CUSTOMER shall have sole responsibility for: (i) the accuracy, quality, and legality of the Customer Data and the means by which customer acquired the Customer Data and the right to provide the Customer Data for the purposes of this SaaS Agreement (including ensuring the receipt of all permissions from individuals and other third parties as may be necessary in order to provide the Customer Data for the purposes contemplated in this SaaS Agreement); (ii) the security and confidentiality of CUSTOMER’s and its End Users’ account information; (iii) maintaining a back-up of all Customer Data; (iv) preventing unauthorized access to, or use of, the Services, and notify CC4ALL promptly of any such unauthorized access or use; (v) collecting, inputting and updating all Customer Data stored on the Host, (vi) ensuring that the Customer Data does not include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party or contain anything that is obscene, defamatory, harassing, offensive or malicious, and (vii) collecting and handling all Customer Data in compliance with all applicable Data Protection Laws, rules, and regulations.
4.6 License from Customer.
Subject to the terms and conditions of this SaaS Agreement, CUSTOMER shall grant to CC4ALL a limited, non-exclusive and non-transferable license to copy, store, configure, perform, display and transmit Customer Data solely as necessary to provide the SaaS Services to CUSTOMER.
4.7 Ownership and Restrictions.
CUSTOMER retains ownership and intellectual property rights in and to its Customer Data, CC4ALL or its licensors retain all ownership and intellectual property rights to the services, software programs, and anything developed and delivered under the SaaS Agreement.
5 Fees, payment, and taxes
5.1 SaaS Service Fee.
During the term, starting from the Start Date, CUSTOMER agrees to pay the monthly or annual fee for the SaaS service and/or fees for the Support Service, all as specified in the order (or if no order was agreed, the then-current GPL will apply)..
5.2 Payment and Payment term.
CUSTOMER shall pay an invoice from CC4ALL within 30 days from the date of issuance. CC4ALL shall issue its invoice when: (a) it receives the Order from CUSTOMER, (b) the agreed (periodic) invoice date(s) has (have) elapsed. A late payment charge of the lesser of 1.0% per month or the highest interest rate allowed by applicable law will be charged upon all past due amounts hereunder.
5.3 Suspension.
If any amounts owing by CUSTOMER under this SaaS Agreement are thirty (30) or more days overdue, CC4ALL may, without limiting CC4ALL’s rights and remedies, suspend the Services to CUSTOMER and/or limit access to Products until such amounts are paid in full. CC4ALL will give at least ten (10) days prior notice that the CUSTOMER’s account is overdue before any suspension.
5.4 Taxes and Duties.
Prices to CUSTOMER do not include taxes, duties, tariffs, handling fees, or other such assessments of any nature. Whenever imposed, such assessments are payable by the CUSTOMER. Income or other taxes that are required to be paid or withheld by CUSTOMER or CC4ALL under the laws of jurisdictions other than The Netherlands, in connection with the Fees paid by CUSTOMER hereunder, are the sole obligation of CUSTOMER and shall be exclusive of the Fees paid by CUSTOMER.
6 Confidential Information, title, and copyrights
6.1 Confidential Information.
Each Disclosing Party shall maintain strict confidentiality with regard to any Confidential Information disclosed to the Receiving Party. It shall deploy such procedures with regard to Confidential Information that shall be no less restrictive than the strictest procedures used by it to protect its own confidential and proprietary information, but not less than reasonable care. Each party acknowledges that a breach of this obligation will constitute a material breach of the SaaS Agreement and will lead to liability on its part. Each party shall ensure that its personnel or (the personnel of) any sub-contractors are advised of the confidential and proprietary nature of the Confidential Information and are bound in writing to confidentiality obligations no less strict than as set out in this SaaS Agreement. During the Term of this SaaS Agreement, any Confidential Information disclosed will be protected for a period of three (3) years from the date of disclosure (perpetually in the case of intellectual property), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this SaaS Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information from preventing the disclosure of Confidential Information of the other party. Neither party shall reverse engineer, diemble, or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder.
6.2 Notifications.
Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information.
6.3 Title. CUSTOMER
acknowledges that the CC4ALL software (including any enhancements, modifications, additions) contains confidential information, is trade secret of, and is proprietary to CC4ALL and its licensors. CUSTOMER shall not assert any right, title, or interest in the CC4ALL software or other materials provided to CUSTOMER under this SaaS Agreement, except for the limited license rights expressly granted to CUSTOMER in Section 3.
6.4 Copyright.
CUSTOMER shall not obscure or remove any copyright or other proprietary notice or legend contained on or included in the CC4ALL software and shall reproduce all such information on all copies made hereunder. CUSTOMER shall not, directly or indirectly, disclose or distribute any technical knowledge of CC4ALL provided with or in the CC4ALL software without the prior written consent of CC4ALL, which consent may be withheld at CC4ALL’s sole discretion.
7 Limited warranties
7.1 Product Warranty.
Provided that CUSTOMER is not in breach of any of its obligations under this SaaS Agreement, CC4ALL warrants from the Start Date that (i) CC4ALL has validly entered in this SaaS Agreement and has the legal power to do so, (ii) CC4ALL will provide the SaaS Services in a professional manner consistent with general industry standards and that the SaaS Services will perform substantially in accordance with the Documentation and (iii) the overall functionality of the SaaS Services will not materially decrease during the Subscription Period.
7.2 Disclaimer of Warranties.
CC4ALL and its licensors make no warranty, representation, or promise except as specifically set forth in this SaaS Agreement. to the fullest extent permitted by law, CC4ALL does not guarantee that the SaaS Services will: (i) be performed error-free or uninterrupted, or (ii) that CC4ALL will correct all SaaS Services errors, or (iii) will satisfy CUSTOMER’s requirements. CUSTOMER acknowledges that CC4ALL does not control the transfer of data over communications facilities, including the Internet, and that the SaaS Service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. This Section sets forth the sole and exclusive warranty given by CC4ALL (express or implied) with respect to the subject matter of this SaaS Agreement. Neither CC4ALL nor any of its licensors or other suppliers warrant or guarantee that the operation of the SaaS Services will be uninterrupted, virus-free, or error-free, nor shall CC4ALL or any of its service providers be liable for unauthorized alteration, theft or destruction of CUSTOMER’s or any User’s data, files, or programs
7.3 Exclusive Remedy.
The CUSTOMER’s sole and exclusive remedy and CC4ALL’s entire liability for any breach of the warranty outlined in Section 7.1, CUSTOMER’s exclusive remedy shall be provided in Section 10.
7.4 Exclusions from Warranty.
The limited warranty is void if non-conformance of the CC4ALL Software results from or is related to the following:
1. factors outside of our reasonable control (for example, natural disaster, war, acts of terrorism, riots, government action, or a network or device failure outside our control);
2. use of hardware, or software not provided or not approved (as recommended in the Documentation) by or on behalf of CC4ALL, including, but not limited to, issues from inadequate bandwidth, high latency, or related to third-party software or services resulting
3. use of CC4ALL software after advice was given to modify your use of the CC4ALL software and provided CUSTOMER did not modify its use as advised;
4. unauthorized action or lack of action when required, or from CUSTOMER’s employees, agents, contractors, or vendors, or anyone gaining access to CC4ALL’s network by means of CUSTOMER’s passwords or equipment, or otherwise resulting from a failure attributable to CUSTOMER to follow appropriate security practices;
5. CUSTOMER’s failure to adhere to any required configurations, install Required Software, use supported platforms, follow any policies for acceptable use, or CUSTOMER’s use of the SaaS Services in a manner inconsistent with CC4ALL’s published guidance;
6. CUSTOMER’s faulty input, instructions, or arguments (for example, requests to access files that do not exist);
7. CUSTOMER’s attempts to perform operations that are not permitted or supported by the Documentation; or
8. Products or Services for which CUSTOMER at the time of the claim has not or not fully paid.
7.5 Free Trial.
If the CC4ALL software is purchased as a trial or evaluation version, a limited license will be granted to use certain key functionality of the software on an “AS IS” basis for your own internal evaluation purposes and during a limited period of a maximum of thirty (30) calendar days and otherwise subject to the express limitations of the trial. The trial consists of 5 agents and one supervisor. Unless CUSTOMER and CC4ALL agree otherwise in writing prior to the expiration or termination of the trial period, CUSTOMER agrees to cease all use of the CC4ALL Products and Services.
8 Limitation of liability
8.1 without prejudice to section 8.2 below, to the maximum extent permitted by law, cc4all’s aggregate liability arising from or relating to the license, products, or services provided under this Saas agreement, irrespective of the nature of the claim, is limited to the fees actually paid over the contract year (exclusive vat) in which the damage-causing event or, in case of a series of related events, the first damage-causing event occurred or commenced.
8.2 in no event shall cc4all or its licensors be liable for any special, incidental, indirect, punitive, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss). It is especially understood and agreed that cc4all excludes liability for any failure by cc4all to meet agreed service levels for the Saas service as a result of network intrusions and/or incidents attributable to critical it service providers, including Microsoft Corp (azure). Some jurisdictions do not allow the exclusion or limit action of incidental or consequential damages, so the above limitation or exclusion may not apply. Any limitation or exclusion of liability as set out in section 8.1 of the Saas agreement shall not apply in so far as the damage is caused by: (i) gross negligence or wilful misconduct of the senior management of cc4all, or (ii) personal or fatal injury, or (iii) IP infringement claims as described in section 9.1.
9 Indemnities and customer obligations
9.1 Infringement Indemnity: Subject to Section
9.2 and the restrictions and limitations set forth herein, CC4ALL shall indemnify and hold harmless CUSTOMER from and against any costs or demands awarded against CUSTOMER by a court of competent jurisdiction pursuant to a final judgment as a result of a claim or action by a third party against CUSTOMER that the SaaS Service or Documentation infringes registered copyright, trademark, valid patent or other intellectual property rights of a third party in North America, European Economic Area, the United Kingdom or Japan. The foregoing indemnity is conditioned on the CUSTOMER:
A. promptly notifying CC4ALL of such claim;
B. permitting CC4ALL to control the response thereto and the defense thereof, including any SaaS Agreement relating to the settlement thereof, and
C. assisting and cooperating with CC4ALL in the defense or settlement thereof. CUSTOMER may participate, at its own expense, in such defense directly or through counsel of its choice on a monitoring, non-controlling basis. CC4ALL shall obtain CUSTOMER’s prior written consent to any compromise or settlement of any claim which would require an admission of liability on the part of CUSTOMER or which would subject CUSTOMER to any injunction or other equitable relief.
9.2 CUSTOMER Indemnity. If a third party makes a claim against CC4ALL that the Customer Data infringes any patent, copyright or trademark, or misappropriates any trade secret, CUSTOMER shall defend CC4ALL and its directors, officers, and employees against the claim at CUSTOMER’s expense, and CUSTOMER shall pay all loss finally awarded against such parties or agreed to in a written settlement SaaS Agreement signed by CUSTOMER, to the extent arising from the claim.
9.3 Exclusions. CC4ALL shall have no obligation under Section 9.1 and otherwise will have no liability for any claim of infringement caused or alleged to be caused by:
A. the Customer Content;
B. modification of the SaaS Services not authorized by CC4ALL, or;
C. use of the SaaS Services other than in accordance with the Documentation and this SaaS Agreement.
9.4 CC4ALL may, at its sole option and expense, procure for CUSTOMER the right to continue the use of the SaaS Services, modify the SaaS Services in a manner that does not materially impair the functionality, or terminate the subscription/term and repay to CUSTOMER any amount paid by CUSTOMER with respect to the subscription following the termination date.
9.5 Exclusive Remedy: Without prejudice to section 9.3, the foregoing Sections 9.1 and 9.2 set forth the exclusive remedy and entire liability and obligation of CC4ALL with respect to third party claims against CUSTOMER alleging intellectual property infringement or misappropriation.
9.6 Injunctions. In the event that a claim of infringement of a valid North American, European Economic Area, the United Kingdom, or Japanese software patent or copyright is made against CC4ALL or CUSTOMER or if CC4ALL reasonably believes that such a claim will be made, CC4ALL, at its option and in lieu of indemnification, may:
A. procure for CUSTOMER the right to use the CC4ALL software without patent or copyright infringement;
B. modify the CC4ALL software to make it non-infringing;
C. replace the CC4ALL software with substantially equivalent software that is non-infringing; or
D. direct CUSTOMER to cease use of the CC4ALL software and refund CUSTOMER a percentage of the aggregate fees received for such CC4ALL software that is the subject of such a claim, based on a five (5) year straight-line depreciation.
9.7 CUSTOMER Obligations. CUSTOMER is solely responsible for:
A. its use of the SaaS Services, including ensuring a level of security appropriate to the risk in respect of the Customer Data, securing its account authentication credentials, protecting the security of Customer personal data when in transit to and from the SaaS Services, taking appropriate steps to securely encrypt and/or back-up any Customer personal data uploaded to the SaaS Services, and properly configuring the SaaS Services and using available features and functionalities to maintain appropriate security in light of the nature of the Customer personal data processed by CUSTOMER’s use of the SaaS Services; and
B. the Customer Data that CUSTOMER (Group) elects to store or transfer outside of CC4ALL’s and (if appropriate) its sub-processors systems (for example, offline or on-premise storage). CC4ALL has no obligation to protect such data; and
C. reviewing the security measures and evaluating for itself whether the SaaS Services and the security measures and CC4ALL’s commitments in respect of data processing will meet CUSTOMER’s needs, including with respect to any obligations of CUSTOMER under data protection laws, as applicable.
D. not allowed to give any third parties/agents access to Products and/or SaaS Services provided to the CUSTOMER, which are hosted by or on behalf of CC4ALL. CUSTOMER shall, during the term, allocate sufficient third party software licenses as required to run (as appropriate) the CC4ALL Software or the Software as a Service in accordance with the Documentation.
10 Termination.
10.1 Termination for Breach.
Each party will have the right to terminate this SaaS Agreement (in whole or in part) at any time by giving written notice to the other party if (i) the other party breaches any material term of this SaaS Agreement and fails to cure such breach within thirty (30) days after written notice thereof; (ii) the other party repeatedly breaches any terms of this SaaS Agreement in such manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this SaaS Agreement, (iii) if any of the following events occur: (a) the presentation of a petition for winding up (b) is the subject of an order or an effective resolution is passed for winding up; (c) the application for an order or application for the appointment of a receiver (including an administrative receiver), administrator, trustee or similar officer in respect thereof; (d) if a receiver, administrative receiver, administrator or similar office is appointed over all or any part of the assets or undertaking; (e) making a composition with its creditors generally or an assignment for the benefit of its creditors or other similar arrangement; (f) goes into liquidation; or (g) ceasing, or threatening to cease, to carry on business.
10.2 Suspension for Non-Payment.
CC4ALL reserves the right to suspend delivery of the SaaS Services if CUSTOMER fails to timely pay any undisputed amounts due to CC4ALL under the SaaS Agreement. But only after CC4ALL notifies the CUSTOMER of such failure, and such failure continues for thirty (30) days or more after the payment due date. Suspension of the SaaS Services shall not release CUSTOMER of its payment obligations under this SaaS Agreement. CUSTOMER agrees that CC4ALL shall not be liable to CUSTOMER or to any third party for any liabilities, claims, or expenses arising from or relating to suspension of the SaaS Services resulting from CUSTOMER’s non-payment.
10.3 Suspension for Ongoing Harm.
CC4ALL reserves the right to suspend delivery of the SaaS Services if CC4ALL reasonably concludes that the CUSTOMER or an End User’s use of the SaaS Services is causing immediate and ongoing harm to CC4ALL or others. In the extraordinary case that CC4ALL must suspend delivery of the SaaS Services, CC4ALL shall immediately notify the CUSTOMER of the suspension, and the parties shall diligently attempt to resolve the issue. CC4ALL shall not be liable to the customer or to any third party for any liabilities, claims, or expenses arising from or relating to any suspension of the SaaS Services in accordance with this Section 10.3. Nothing in this Section 10.3. will limit CC4ALL’s rights under Section 10.5 below.
10.4 Exclusive Reasons for Termination.
To the extent permitted by law, the parties waive any right to terminate, rescind, or otherwise end the SaaS Agreement on grounds other than those set out herein.
10.5 Effect of Termination.
A. Upon expiration or termination of this SaaS Agreement, CC4ALL shall immediately cease providing the SaaS Services, and all usage rights granted under this SaaS Agreement shall terminate.
B. If CC4ALL terminates this SaaS Agreement due to material, uncured breach by CUSTOMER, then CUSTOMER shall immediately pay to CC4ALL or Partner (if purchased through a Partner) all amounts then due or to become due during any Order issued under. If CUSTOMER terminates this SaaS Agreement due to an uncured material breach by CC4ALL, then CC4ALL shall immediately refund to CUSTOMER all pre-paid amounts for any unperformed SaaS Services scheduled to be delivered for the remainder of the (Initial) Subscription Period.
C. Upon termination of this SaaS Agreement and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall promptly return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.
10.6 Termination of Orders.
All Orders issued under this SaaS Agreement shall terminate immediately on termination of this SaaS Agreement in accordance with this section 10 unless agreed otherwise.
11 Personal data and privacy
11.1 Scope.
The parties will comply with Data Protection Laws relating to CC4ALL’s processing of CUSTOMER GROUP personal data as part of the SaaS Services provided pursuant to this SaaS Agreement. Parties may further detail the aforementioned in a Data Processor Agreement that will form part of this SaaS Agreement as a separate Exhibit if agreed between the parties. If no separate Data Processor Agreement is executed, this Agreement will be considered a Data Processing Agreement as defined under Data Protection Laws.
12 General
12.1 Non-Exclusive Service.
CUSTOMER acknowledges that SaaS Services are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict CC4ALL’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for CUSTOMER, to other parties.
12.2 License administration and Audit.
CUSTOMER shall keep complete and accurate books and records of its use of the SaaS Services to demonstrate its compliance with this SaaS Agreement. Further, CC4ALL may audit CUSTOMER’s use of the SaaS Services in order to verify compliance with this SaaS Agreement. CUSTOMER agrees to cooperate with CC4ALL’s reasonable request for access to CUSTOMER’s computer systems to ensure CUSTOMER’s adherence with the license terms hereunder.
12.3 Notices.
Any notice required or permitted to be given by CUSTOMER hereunder shall be in writing and delivered by courier or overnight delivery services, by email (with a read receipt) or by certified mail, and in each instance will be deemed given upon receipt. Any such notice shall be delivered or sent to CC4ALL, Lange Dreef 15 4131NJ VIANEN, The Netherlands.
12.4 Governing Law and Disputes.
A. If you acquired the CC4ALL Software or Services, all matters arising from or connected with this SaaS Agreement are governed by the laws of the Netherlands, excluding CISG, conflict of law rules, and choice of law principles that provide otherwise.
B. Disputes. Any dispute between CUSTOMER and CC4ALL with regard to this SaaS Agreement shall exclusively be settled by arbitration in The Hague, The Netherlands, in the English language in accordance with then-existing Rules of Conciliation and Arbitration of the International Chamber of Commerce (“ICC”) by 1 (one) arbitrator to be selected in accordance with the said rules. The parties request the ICC Court of Arbitration to attempt to appoint an arbitrator who is knowledgeable in the area of information technology; if no such arbitrator can be appointed, the normal appointment process shall apply. The award rendered therein shall be final and binding upon the parties to such arbitration proceedings.
C. Urgent relief. CUSTOMER acknowledges and agrees that any copying or use of the CC4ALL software other than as expressly permitted by this SaaS Agreement would result in irreparable injury to CC4ALL for which money damages would be inadequate and in such event submission to arbitration shall not preclude CC4ALL’s ability, in addition to other remedies available at law and in equity, to immediate injunctive relief to prevent any such unauthorized use.
12.5 Legal Effect.
This SaaS Agreement describes certain legal rights. You may have other rights under the laws of your state or country. You may also have rights with respect to the party from whom you acquired the CC4ALL software. This SaaS Agreement does not change your rights under the laws of your state or country if the laws of your state or country do not permit it to do so.
12.6 Assignment.
Neither party may assign any rights, duties, obligations or privileges under this SaaS Agreement without the prior written consent of the other party. Furthermore, CUSTOMER may not assign (or pledge) a claim against CC4ALL in a way that is valid under applicable property law without the prior written consent of CC4ALL. A change of control or ownership shall not be deemed to be an assignment under this Section so long as the new owner has expressly assumed in writing all of the duties and obligations of the assignor and further provided, that CUSTOMER shall remain liable and responsible to CC4ALL (and its licensors) for the performance and observance of all such duties and obligations.
12.7 Severability.
Should any part or provision of this SaaS Agreement be held unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining parts or provisions shall not be affected by such holding.
12.8 Limitation on Effect of Waiver.
Failure on the part of CC4ALL to exercise, or CC4ALL’s delay in exercising, any of CC4ALL’s rights hereunder shall not be construed as a waiver or waiver of other breaches of this SaaS Agreement. Any single or partial exercise by a party of any right shall not preclude any other or future exercise thereof or the exercise of any other right in the SaaS Agreement.
12.9 Entire SaaS Agreement and Amendments.
The SaaS Agreement contains the entire understanding of the parties with respect to the transactions contemplated and supersedes any prior SaaS Agreements or understandings among the parties with respect to the subject matter hereof. Except as expressly agreed otherwise in this SaaS Agreement, the provisions of the SaaS Agreement may be amended only in writing signed by authorized representatives of both parties.
12.10 Export Law Assurances.
CUSTOMER acknowledges that it is familiar and shall comply with all domestic and international export laws and regulations that apply to the CC4ALL software. These laws include restrictions on destinations and use. CUSTOMER hereby expressly agrees to defend, hold harmless and indemnify CC4ALL, its directors, officers, and employees, from any claim, suit, or dispute alleging that CUSTOMER has exported the CC4ALL software in violation of such laws.
12.11 Construction.
The headings in this SaaS Agreement are for the convenience of the parties only. They do not constitute a portion of this SaaS Agreement and shall not be used to interpret this SaaS Agreement’s construction.
12.12 Third-Party Beneficiary.
CUSTOMER hereby agrees that the licensors of Third Party Software shall be considered third party beneficiaries of this SaaS Agreement and shall be entitled to bring a direct action against CUSTOMER in the event of a breach of any applicable provisions of this SaaS Agreement, pursuant to the terms and conditions of this SaaS Agreement.
12.13 Force Majeure
Neither party shall be in default if failure to perform any obligation hereunder is caused solely by unforeseen supervening conditions beyond that party’s reasonable control, which could not have been prevented by the non-performing party’s reasonable precautions, commercially accepted processes, or substitute services, including acts of God, civil disturbances, strikes and labor disputes.
12.14 Survival.
The rights and obligations of the parties which by their nature extend beyond the expiration or termination of the SaaS Agreement shall survive termination or expiry of this SaaS Agreement for any reason.
12.15 Negation of Agency and Similar Relationships.
Nothing contained in this SaaS Agreement shall be deemed to create any agency, joint venture, or partnership relationship.
13 Sub-processors
Sub-Processors on behalf of the Data Processor are:
Expert Network
Barbu Lăutaru 11, 700399 Iași, Romania
Software Development, Tier 3 Support
Harbers ICT
Koningslinde 10, 7131 MP Lichtenvoorde, The Netherlands
Cloud Infrastructure
Version SaaS agreement: 01-05-2022
