1. Software Services Agreement
This Agreement (including its Order Schedule, Support Terms, and all other documents referenced herein) is entered into by teamcx B.V. ("teamcx") and the teamcx customer named on the signature page at the bottom ("Customer") for the purpose of providing Customer with Web-based access to teamcx's software applications ordered by Customer and specified in Order Schedule, including any updates, upgrades or revisions provided under this Agreement ("Software").
2. Provision of Services
teamcx will provide Customer with access, maintenance and related software as a service ("SaaS") to the Software installed on teamcx's servers and other equipment (the "teamcx System"). Customer shall be responsible for maintaining the confidentiality of such passwords and shall permit only authorized employees of Customer to access the teamcx System.
2.1 Customer Support. teamcx will provide live telephone support to Customer during business operation hours 08:00 am – 05:00 pm (CET time), Monday through Friday, excluding national holidays, by a trained teamcx customer support representative. Customer understands that to deliver support, teamcx customer support representative will have to access their tenant and review configuration and operational data to assess issues and work on resolutions.
3. Customer's Responsibilities
Customer agrees that it shall be responsible for providing and maintaining its own Internet access and all necessary telecommunications equipment, software and other materials ("Customer Equipment") at Customer's location necessary for accessing the Software and the TEAMCX System through the Internet. Customer agrees to notify TEAMCX of any changes in the Customer Equipment, including any system configuration changes or any hardware or software upgrades, which may affect the SaaS services provided hereunder. The TEAMCX System is only to be used for lawful purposes.
Customer agrees not to transmit, re-transmit or store materials on or through the TEAMCX System or the Software that are harmful to the TEAMCX System or Software, or in violation of any applicable laws or regulations, including without limitation laws relating to infringement of intellectual property and proprietary rights of others. To the extent that certain components of the Software may be downloaded to Customer's or User's computer as a result of accessing the Software as part of the SaaS services, TEAMCX grants Customer a non-exclusive, non-transferable, limited license, with right to sublicense solely to Users, to use such Software only in connection with the SaaS services. Neither Customer nor Users are otherwise permitted to use the Software, nor will Customer or Users disassemble, decompile or otherwise attempt to discern the source code of such Software. Customer agrees that, except as expressly set forth in this Section and in Section 11, it will not rent, lease, sublicense, re-sell, time-share or otherwise assign to any third party this Agreement or any of Customer's rights or licenses to access the Software or the TEAMCX System, nor shall Customer use, or authorize others to use, the Software, SaaS Services or the TEAMCX System to operate a service bureau. Notwithstanding the preceding sentence, Customer shall be permitted to provide access to the TEAMCX System to its employees and agents located worldwide.
4. Proprietary Rights
Except for the limited access right granted to Customer in this Agreement, all right, title and interest in and to the Software (including any and all modifications as a result of any implementation services rendered) and the TEAMCX System are and shall remain the exclusive property of TEAMCX and its licensors. TEAMCX acknowledges and agrees that the Online Messages are the property of Customer and that TEAMCX has only a limited right to use the Online Messages as set forth in the following sentence. Notwithstanding the foregoing, TEAMCX may access and disclose the Online Messages solely as necessary to provide the SaaS services, to operate and maintain its systems, to comply with applicable laws and government orders and requests, and to protect itself and its customers. Online messages include all elements of transactions performed as part of the System and stored within the System files.
5. Pricing and Payment
Customer agrees to pay the fees and other charges for the SaaS Services and other services provided under this Agreement as specified in Order Schedule of this Agreement. CUSTOMER AGREES TO PAY FOR THE INITIAL INSTALLMENT PAYMENT FOR THE SAAS SERVICES AS DEFINED ON THE ORDER SCHEDULE AND ANY ONE TIME FEES ON OR BEFORE THE FIRST DAY OF SERVICE DELIVERY. TEAMCX will invoice Customer for such Fees in the month after the month in which such fees accrue as provided in Order Schedule. All amounts payable hereunder are exclusive of any and all taxes, and Customer is responsible for payment of such taxes (excluding taxes based on TEAMCX's net income). All prices are stated, and Customer shall pay, in Euro’s. Payment received by TEAMCX after the due date shall be subject to a late fee equal to one and one-half percent (1.5%) per month, or, if less, the maximum amount allowed by applicable law. At the end of the initial Agreement term and any subsequent one-year terms, TEAMCX may adjust the monthly fee payable under this Agreement by providing Customer written notice of such adjustment at least sixty (60) days prior to the beginning of the new term. [SaaS Service fees for renewal term billing interval must be paid prior to the commencement of such renewal term].
6. Limited Warranties; Disclaimer of Warranties
6.1 TEAMCX represents and warrants to Customer that the Software will perform substantially in accordance with the documentation, if any, provided by TEAMCX to Customer and the SaaS services will be performed in a professional and workmanlike manner and in accordance with Section
In the event of a breach (other than Downtime) of the warranty set forth in Section 6.1 above, Customer's sole and exclusive remedy, and TEAMCX's sole and exclusive liability shall be, at TEAMCX's option, repair or replacement of the Software.
6.2 Except as provided in section 6.1 the SaaS services are provided, and the software and the TEAMCX system are made available by TEAMCX to the customer “as is,” and TEAMCX and its suppliers make no warranty of any kind whether express or implied, regarding the SaaS services, the software or the TEAMCX system, and specifically disclaim the warranties of merchantability, fitness for a particular purpose and against infringement, to the maximum extent possible by law.
6.3 WITHOUT LIMITING THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, TEAMCX DOES NOT WARRANT THAT THE SOFTWARE, THE TEAMCX SYSTEM OR THE SAAS SERVICES WILL MEET CUSTOMER'S REQUIREMENTS (EXCEPT AS PROVIDED IN SECTION 6.1) OR THAT CUSTOMER'S ACCESS TO AND USE OF THE SOFTWARE, THE TEAMCX SYSTEM OR THE SAAS SERVICES WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OMISSIONS. TEAMCX CANNOT AND DOES NOT GUARANTEE THE PRIVACY, SECURITY, AUTHENTICITY AND NON-CORRUPTION OF ANY INFORMATION TRANSMITTED THROUGH, OR STORED IN ANY SYSTEM CONNECTED TO, THE INTERNET. TEAMCX WILL USE COMMERCIALLY REASONABLE EFFORTS TO ADEQUATELY MAINTAIN, AND UPGRADE AS NECESSARY, THE TEAMCX SYSTEM TO PROVIDE THE SAAS SERVICES TO ITS CUSTOMERS. HOWEVER, EXCEPT AS EXPRESSLY SET FORTH HEREIN, TEAMCX SHALL NOT BE RESPONSIBLE FOR ANY DELAYS, ERRORS, FAILURES TO PERFORM, OR DISRUPTIONS IN THE SAAS SERVICES CAUSED BY OR RESULTING FROM ANY ACT, OMISSION OR CONDITION BEYOND TEAMCX'S REASONABLE CONTROL.
7. Limitation of Liability
IN NO EVENT SHALL TEAMCX BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), OR BE LIABLE TO ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, EVEN IF TEAMCX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TEAMCX'S ENTIRE LIABILITY UNDER THIS AGREEMENT FOR ANY DAMAGES FROM ANY CAUSE WHATSOEVER, REGARDLESS OF FORM OR ACTION, WHETHER IN CONTRACT, NEGLIGENCE OR OTHERWISE, SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE SAAS SERVICES FEES PAID BY CUSTOMER FOR THE 12-MONTHS PRECEDING THE TIME OF THE EVENT GIVING RISE TO THE CLAIM..
8. Confidential Information
Each party agrees to keep confidential and to use only for purposes of performing (or as otherwise permitted under) this Agreement, any proprietary or confidential information of the other party disclosed pursuant to this Agreement which is marked as confidential or which would reasonably be considered of a confidential nature. The obligation of confidentiality shall not apply to information which is publicly available through authorized disclosure, is known by the receiving party at the time of disclosure as evidenced in writing, is rightfully obtained from a third party who has the right to disclose it, or which is required by law, government order or request to be disclosed. Upon any termination of this Agreement, each party shall return to the other party all confidential information of the other party, and all copies thereof, in the possession, custody or control of the party unless otherwise expressly provided in this Agreement.
9. Term and Termination
9.1 Term and Termination. This Agreement shall continue in effect from the Effective Date for the Initial Term of the Agreement as defined in the Order Schedule, unless earlier terminated as set forth below, and thereafter shall renew automatically for successive one (1) year periods unless either party gives the other party at least thirty (30) days prior written notice of its intent not to renew the Agreement. In addition, either party may terminate this Agreement by giving to the other party written notice of such termination upon the other party's material breach of any material term (subject to the other party's right to cure within thirty (30) days after receipt of such notice), the other party's insolvency, or the institution of any bankruptcy or similar proceedings by or against the other party.
9.2 Effect of Termination. Upon any termination of this Agreement, TEAMCX shall immediately cease providing all SaaS services, and Customer shall no longer have access to the Software or the TEAMCX System. Except in the event of termination for Customer's breach, TEAMCX shall provide Customer with an electronic copy of the final Reports (covering the month just prior to termination of this Agreement). TEAMCX shall be entitled to retain a copy (whether electronic or otherwise) of the Online Messages and the Reports for its records and internal purposes and shall not disclose such Online Messages or Reports to any third party except as permitted under Section 4. Within fifteen (15) days of any termination of this Agreement, Customer shall pay to TEAMCX all unpaid fees accrued prior to termination. Sections 4, 5 (as to amounts accrued but unpaid), 7, 8, 10.2 and 12 and Order Schedule (as to amounts accrued but unpaid) shall survive any expiration or termination of this Agreement.
10. Customer References
Customer agrees that, during the term of this Agreement, TEAMCX may reference Customer in TEAMCX's customer listings and may place Customer's name and logo on TEAMCX's Web site and in collateral marketing materials relating to TEAMCX's products and services. Customer hereby grants TEAMCX a right to use Customer's trademarks (name and logo only) designated by Customer for such limited uses, subject to Customer's trademark/logo usage guidelines, if any, provided by Customer to TEAMCX. With these limited exceptions, TEAMCX agrees that it may not use Customer's name, logo or any other trademarks (including in any press releases, customer "case studies," and the like) without Customer's prior consent.
11. Miscellaneous
This Agreement, including Order Schedule and any other exhibits hereto, constitutes the entire agreement of the parties, and supersedes any prior or contemporaneous agreements between the parties, with respect to the subject of this Agreement. Except as otherwise expressly provided herein, this Agreement may be modified only in writing, by a document signed by an authorized representative of each party. This Agreement shall be governed by and construed in accordance with the laws of The Netherlands exclusive of its conflict of laws principles. Notices under this Agreement shall be in writing, addressed to the party at its last-provided address, and shall be deemed given when delivered personally, or by e-mail (with confirmation of receipt) or conventional mail (registered or certified, postage prepaid with return receipt requested). Nothing contained in this Agreement is intended or is to be construed to constitute TEAMCX and Customer as partners or joint ventures’ or either party as an agent of the other. If any provision of this Agreement shall be declared invalid, illegal or unenforceable, all remaining provisions shall continue in full force and effect. All waivers of any rights or breach hereunder must be in writing to be effective, and no failure to enforce any right or provision shall be deemed to be a waiver of the same or other right or provision on that or any other occasion. Neither party may assign or otherwise transfer its rights and/or obligations under this Agreement without the prior written consent of the other party; except that no consent shall be required for an assignment of this Agreement made pursuant to a merger, consolidation, or the acquisition of all or substantially all of the business and assets of a party. This Agreement will bind and inure to the benefit of the parties and their successors and permitted assigns.