Master Software as a Service Agreement

(MASTER AGREEMENT)

1. DEFINITIONS AND INTERPRETATION

Capitalized terms set forth in this Master Agreement have the meaning ascribed thereto below. Any other capitalized term not defined in any document referenced herein shall have the same meaning ascribed thereto below.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

Affiliate

of a Party means any legal entity directly or indirectly controlled by, controlling, or under common control with a Party, where “control” means direct or indirect possession of a majority of the voting stock or other voting ownership interests in the entity. Any such entity shall be considered an Affiliate for only such time as such interest or control is maintained.

Agreement

means the agreement as defined in the applicable Order Form. Unless otherwise provided in the Order Form, an Agreement consists of that Order Form and the referenced documents listed therein.

Cloud Materials

means (i) the Solution, and (ii) any work product or tangible result produced by or with Provider under the Agreement, excluding any work product or tangible result that incorporates or consists of Company Data, Company Pre-Existing Intellectual Property, Company Confidential Information and/or Outputs.

Cloud Service(s)

means (i) the hosting and operation of the Cloud Materials and other necessary system, software and utilities on the Platform, making such Cloud Materials and Company Data available to Users via the Platform, and (ii) the Support Services offered by Provider under the Order Form. The term Cloud Services does not include Professional Services.

Company

means the legal entity that has ordered the Cloud Services or Professional Services from Provider.

Company Data

means any data (including Personal Data), content, information or materials (and any updates thereto) uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of Company, a User or any person or application or automated system using Company’s account; or otherwise provided by Company to Provider in connection with the Agreement.

Company Materials

means any (i) Company technology, (ii) Company-specific business processes, or (iii) deliverables that are specifically designated as Company-owned property in a Statement of Work.

Confidential Information

means (A) with respect to Company, Company Data, Company Materials, any Outputs, marketing and business plans and/or Company financial information, and (B) with respect to Provider: (a) the Professional Services including, without limitation, all (i) computer software (both object and source codes) and related documentation or specifications; (ii) techniques, concepts, methods, processes and designs embodied in or relating to the Professional Services; and (iii) all application program interfaces, system security and system architecture design relating to the Cloud Services disclosed in the performance of the Professional Services; (b) Cloud Materials and (c) Provider research and development, product offerings, pricing and availability. In addition to the foregoing, Confidential Information of either Provider or Company shall also include (C) the existence and terms of the Agreement, and (D) information which the Disclosing Party protects against unrestricted disclosure to others that (i) the Disclosing Party or its representatives designates as confidential at the time of disclosure; or (ii) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure; including, without limitation, information about or concerning any third-party that is disclosed to Receiving Party under the Agreement.

Data Processing Agreement

means the terms and conditions applicable to the processing of Company Personal Data on the Platform set forth in the Data Processing Agreement.

days

means, unless stated otherwise herein, calendar days.

Disclosing Party

means the Party disclosing Confidential Information.

Documentation

means the documentation produced by Provider or beqom SA and made available on the Platform to Company specifying how the Solution can be used as well as any other materials provided by Provider as part of the Cloud Services.

Effective Date

means the commencement date as indicated in the Order Form.

EULA

means the end user license agreement for PayAnalytics powered by beqom.

Functionalities

means the functionalities of the Solution as detailed in the Functionality Description.

Harmful Code

means any code containing viruses, Trojan horses, worms or like destructive code, code that self-replicates or code that contains a "timeout" feature to prevent access and use at some future date.

Initial Subscription Period or Initial Period

means the initial period of the Cloud Services and/or Professional Services stated in the Order Form.

Intellectual Property Rights

means patents of any type, design rights, utility models or other similar invention rights, copyrights, trade secret, know-how or confidentiality rights, trademarks, trade names and service marks and any other intangible property rights, including applications and registrations for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.

Master Agreement

means the terms and conditions contained herein.

Order Form

means the written order form or other ordering documentation entered into by Provider and Company containing the pricing, the Initial Period as well as specific terms and conditions, if any, applicable to the Cloud Services or Professional Services.

Outputs

means output created or generated by the Cloud Services for Company, whether in the form of application logs, tables, reports or any other format, that is based on, or derived from or otherwise uses any Company Materials obtained by Company or its Users through the use of the Cloud Services

Party or Parties

means Company and/or Provider, as required by the context.

Payee

means one (1) individual or legal entity (employee, distributor, agent) having the PayAnalytics powered by beqom, managed by the Cloud Services.

Personal Data

means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.

Platform

means the cloud storage and processing infrastructure provided by Provider that is made available to, and accessed by, Company via an Internet site operated by Provider to provide access to the Cloud Services.

Pre-Existing Intellectual Property

means any invention, discovery or other intangible asset (whether or not patentable or copyrightable) and all related Intellectual Property Rights, whether or not embedded in a Cloud Material, Company Material or deliverable; in each case that has been owned, controlled or in-licensed by a Party prior to the date of the applicable Order Form, or developed by a Party independently of any Order Form without reference to or reliance upon any of the Confidential Information disclosed by the other Party.

Professional Services

means deployment services, as well as any functional maintenance, configuration support, advisory assistance and training related to or resulting from those services. The term Professional Services does not include Cloud Services.

Provider

means the Allshares entity specified in the relevant Order Form.

Receiving Party

means the Party receiving Confidential Information.

Renewal Period

shall have the meaning ascribed thereto in Section 6.

Service Analyses

means i) the compilation of statistical and other information related to the performance, use and/or operation of the Cloud Services, and ii) the use of such information in aggregated form for Solution improvement, security management and statistics purposes.

Service Level Agreement

means the terms and conditions applicable to the provision of Support Services detailed in the Service Level Agreement.

Software

means the online software applications provided by Provider as an authorized reseller of PayAnalytics powered by beqom as part of the Cloud Services.

Solution

means the pay equity management solution developed by beqom SA and made available to Company through the Platform.

Statement of Work

means a document provided by Provider describing the Professional Services to be provided to Company.

Subcontractor

means a third-party to whom Provider delegates one or more of its obligations under the Agreement, including beqom SA.

Subscription Term

means collectively, the Initial Subscription Period and any subsequent Renewal Period.

Support Services

means support and maintenance services related to the Platform and the Solution provided by Provider pursuant to the Service Level Agreement.

Taxes

means any form of taxation, levy, duty, customs fee, charge, contribution or impost of any nature whatsoever and imposed by any authority (including without limitation any fine, penalty, surcharge or interest), excluding, however, any taxes based solely on the net income of Provider.

User

means any employee, agent, or individual contractor who is authorized by Company or its Affiliates to use the Cloud Services.

2. STRUCTURE

The Master Agreement is structured so that individual Order Forms will be entered into by the Parties and such Order Forms are governed by and subject to this Master Agreement.
Each Order Form, unless otherwise agreed by the Parties, shall constitute a separate Agreement under this Master Agreement.
Company’s Affiliates may enter into an Order Form for their own benefit. In such a case, a reference to Company in this Master Agreement shall be deemed a reference to the relevant Affiliate, unless the context in which the term “Company” is used in this Master Agreement suggests otherwise.
In the event of inconsistency or conflict among the documents comprising the Agreement, the following order of precedence shall apply unless otherwise provided in the applicable Order Form and to the extent of the conflict or inconsistency: a) with respect to the performance of Cloud Services: (1) the applicable Order Form; (2) EULA; (3) the Master Agreement; (4) the Functionality Description; (5) the Service Level Agreement; and (6) the Data Processing Agreement; b) with respect to the performance of Professional Services: (1) the applicable Order Form; (2) the Master Agreement; (3) the Data Processing Agreement; and (4) the applicable Statement of Work; provided always that the terms of the Data Processing Agreement shall take precedence and govern with respect to the protection of Personal Data.

3. LICENSE

License Grant. Provider hereby grants or procures the grant to Company, its Affiliates and their respective Users a limited, non-transferable and non-exclusive license to remotely access the Platform and use the Cloud Services solely for Company’s own internal business purposes as permitted by and subject to the EULA and the Master Agreement. There is no transfer from Provider or its licensors to Company or its Affiliates of any proprietary right or interest in the Cloud Services, the Platform or the Cloud Materials. Provider and its licensors reserve all other rights. Company shall be solely responsible for authorizing access to the Platform and assigning roles, unique passwords and usernames to its Users via Company’s own identity provider system in order to permit Users to remotely access and use the Cloud Services solely for Company’s own internal business purposes as permitted by the EULA and the Master Agreement.
Extent. Users will access the Platform via the Internet; Company acknowledges that Provider has no obligation to provide copies of any Software to Company as part of the Cloud Services. Company acknowledges that Users’ right to access and use the Cloud Services shall not exceed the scope and extent of the rights granted in the EULA and the Master Agreement or the duration of the Subscription Term.
Restrictions. Company shall be responsible for the acts and omissions of its Users and Affiliates’ Users as if they were the acts and omissions of Company.
Company shall not, and shall procure that its Affiliates and their respective Users do not: a) make the programs or materials resulting from the Cloud Services available in any manner to any third-party for use in the third-party’s business operations; b) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Cloud Materials, c) access or use the Cloud Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to the Cloud Services; d) reproduce, distribute, download, display, post or transmit in any form or by any means part of the Cloud Services or of the Cloud Materials, except as expressly provided under the EULA and the Master Agreement; e) sublicense, license, sell, lease, rent or otherwise make the Cloud Services available to any third- party other than as expressly permitted under the EULA and the Master Agreement; f) use the Cloud Services or the Cloud Materials in any way that is unlawful, illegal, fraudulent or harmful or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
Environments. The Platform consists of one production environment. Subject to a separate agreement and payment of additional fees, Company may be able to order additional instances and/or tenants. -Access Conditions. User access credentials issued to access or utilize the Cloud Services cannot be shared or used by more than one individual.
Company shall be solely responsible for authorizing access to the Platform and assigning roles, unique passwords and usernames to its Users via Company’s own identity provider system in order to permit Users to remotely access and use the Cloud Services solely for Company’s own internal business purposes as permitted by the EULA and the Master Agreement.
Company shall be solely responsible for implementing and managing user identification and access controls to Company Data and Company’s Confidential Information on Company’s own local network and equipment, and other equipment under Company’s control (whether local or cloud-hosted equipment or mobile devices).
Company shall use commercially reasonable efforts to prevent unauthorized access to or use of the Cloud Services by its Users and shall promptly notify Provider of any unauthorized access or use of the Cloud Services it may become aware of and any loss, theft or unauthorized use of any User’s password or name and/or account numbers.

4. SUPPORT LEVELS AND AVAILABILITY

Provider shall provide operational Support Services in accordance with the Service Level Agreement.

5. COMPANY RESPONSIBILITIES

Subject to Section 8 (Confidentiality), Company grants to Provider a worldwide, revocable, royalty-free license to host, copy, transmit and display Company Data and to use Company Data for the sole purpose of and only to the extent necessary for Provider to perform the Cloud Services for the duration of the Subscription Term.
Company shall be solely responsible for: a) all activities conducted under its User logins and for its Users’ compliance with the EULA and the Master Agreement; b) the security of its own information systems and of its Internet connections from its systems to the entry point of the Platform; c) and the content of the Company Data supplied by it.
Company is solely responsible for determining the suitability of the Cloud Services for Company’s business and complying with any regulations, laws, or conventions applicable to the Company Data and Company’s use of the Cloud Services. Company agrees not to submit to, or store in the Cloud Services, any Personal Data unless Company has complied with its obligations under this Section 5.

6. TERM AND TERMINATION

-Cloud Services Term. Cloud Services are provided for the Subscription Term unless earlier suspended or terminated in accordance with the Agreement. Upon expiry of the Initial Subscription Period, the subscription shall automatically renew for subsequent one (1) year terms (each a “Renewal Period”) unless a Party provides the other Party with written notice no later than ninety (90) days prior to the end of the then-current Subscription Term of its intention not to renew the Cloud Services. -Professional Services Term. Professional Services will be provided for the period stated in the applicable Order Form or upon completion of the Professional Services in accordance with the Agreement unless terminated earlier by either Party in accordance with the Agreement. Any recurring multi-year Professional Services are provided for the same term as the Cloud Services and such services can be terminated only in connection with the Cloud Services in accordance with Section 6(1) above.

Termination. Either Party may terminate the applicable Agreement at any time if: a) the other Party breaches any of its material obligations under the Agreement and fails to cure within thirty (30) days of receipt of written notice from the non-breaching Party; or b) the other Party becomes insolvent or bankrupt or ceases substantially all of its business; or c) by Provider for breach of the EULA or Section 3 (License) upon ten (10) days’ prior written notice. -Effect of Termination. Company shall be liable for payment of all undisputed costs, fees and expenses up to the effective date of termination.
Termination by either Party under this Section 6 shall be without prejudice to such Party’s right to damages and other rights and recourse at law or otherwise.

7. FEES AND TAXES

-Subscription Fees. Company shall pay to Provider the Cloud Services fees in the amount and within the time limits set forth in the applicable Agreement. Fees will be fixed for the Initial Subscription Period, and shall be invoiced annually in advance. Fees for Renewal Periods will be invoiced annually prior to the start of each subscription year. Except as set forth herein, all fees are non-cancellable and non-refundable.

Additional Payees. Company may add additional Payees during the Subscription Term by executing an additional Order Form which shall then become an integral part of the Agreement. The term of each additional Order Form shall be coterminous with the then-current term of the Agreement and all additional fees shall be prorated accordingly. Provider shall invoice Company in arrears for the additional fees after the end of the month to which such additional fees apply. -Professional Services Fees. Company shall pay to Provider the fees for Professional Services, the amounts and billing principles of which are as set forth in the applicable Agreement.
Price Revisions. Provider may revise the fees for the Renewal Periods. If the price increase exceeds the fees for the services under this Agreement due for the immediately preceding twelve-month period multiplied by the applicable consumer price index (the consumer price index of the country the law of which is applied to this Agreement), the Provider shall notify Company of the price change at least hundred (100) days before the end of the then-current Subscription Term.
Late Payment. If Company does not pay any undisputed fees in accordance with the terms of the Agreement then, in addition to any other available remedies, Provider may suspend Company’s use of the Cloud Services or the provision of Professional Services until payment is made. Provider shall provide Company with prior written notice before any such suspension. Any fees not paid when due shall accrue interest in accordance with the applicable interest act. Purchase orders issued by Company are for Company’s administrative convenience only.
Taxes. Fees and other charges imposed under an Order Form will not include Taxes, all of which will be for Company’s account. Company is responsible for all Taxes. Company must provide to Provider any direct pay permits or valid tax-exempt certificates prior to signing an Order Form. If Provider is required to pay Taxes, Company will reimburse Provider for those amounts and related reasonable costs paid or payable by Provider attributable to those Taxes that are due by Company.
Payment. All undisputed amounts invoiced are due and payable within fourteen (14) days (net) of the invoice date. Company shall have no right to withhold or reduce fees or set off any amount against fees owed for alleged defects in the Cloud Services or Professional Services.

8. CONFIDENTIALITY

Non-Disclosure. The Receiving Party shall: a) maintain all Confidential Information of the Disclosing Party in strict confidence, taking steps to protect the Disclosing Party’s Confidential Information substantially similar to those steps that the Receiving Party takes to protect its own similar Confidential Information, which shall not be less than a reasonable standard of care; b) not disclose or reveal any Confidential Information of the Disclosing Party to any person other than its personnel, officers, directors, auditors and legal advisers whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in this Section 8; c) not use or reproduce any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement; and d) retain any and all confidential, internal or proprietary notices or legends which appear on the original and on any reproductions.
Confidential Information of either Party disclosed prior to execution of an Agreement are subject to the protections afforded hereunder. -Exceptions. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: a) is independently developed by the Receiving Party without reference to or reliance upon the Disclosing Party’s Confidential Information, or is lawfully received free of restriction from a third- party having the right to furnish such Confidential Information; b) has become generally available to the public without breach of the EULA or this Master Agreement by the Receiving Party; c) at the time of disclosure, was known to the Receiving Party free of restriction; or d) the Disclosing Party agrees in writing is free of such restrictions.
Notwithstanding the foregoing, any services and Cloud Materials provided by Provider prior to the execution of the Agreement are the sole property and Confidential Information of Provider and shall be governed by this Master Agreement. -Return and removal. At the end of the Subscription Term or upon the effective termination date of the Cloud Services, the Receiving Party shall (and agrees to cause its permitted recipients to): a) promptly cease all use of the Disclosing Party’s Confidential Information in its or its permitted recipients’ possession, custody or control; and b) return or destroy of the Disclosing Party’s Confidential Information in the Receiving Party’s or its permitted recipients’ possession, custody or control to the Disclosing Party.
Company’s obligation to return or destroy Provider Confidential Information does not apply to the Outputs. Notwithstanding the foregoing, retrieval and deletion of Company Personal Data and other Company Data hosted on the Platform are governed by the terms of the Data Processing Agreement.
Notwithstanding the foregoing and always subject to the specific return and deletion provisions applicable to Company Personal Data set out in the Data Processing Agreement: a) a single copy of all written Confidential Information may be retained by the Receiving Party’s legal counsel solely for the purposes of determining its obligations hereunder; and b) the Receiving Party shall not be obligated to return or destroy any Confidential Information that the Receiving Party is legally prohibited from returning. -Compelled Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by court order or regulatory agency; provided that the Receiving Party required to make such a disclosure uses reasonable efforts to give the Disclosing Party reasonable prior notice of such required disclosure (to the extent legally permitted) and provides reasonable assistance in contesting the required disclosure, at the request and cost of the Disclosing Party; any proposed disclosure will be limited to the minimum amount of Confidential Information required to satisfy that disclosure obligation. -Survival. This Section 8 shall survive termination of the relevant Agreement for a period of five (5) years; provided that the Receiving Party’s obligations with respect to any Confidential Information that constitutes a trade secret shall survive termination for so long as such information qualifies as a trade secret under the law applicable to the Agreement.
Reference permission. Provider may issue press releases, show Company’s name and logo on its website in order to identify Company as a recipient of Cloud Services, and use Company’s name and logo in sales presentations and marketing materials.
Statistical Information. Provider may perform Services Analyses and may use and make such Service Analyses results publicly available, provided such results do not incorporate Company Data, Personal Data and/or identify Confidential Information in a form that could serve to identify Company, any Company’s Affiliate and/or any individual or include Company’s company name and/or any Company Affiliate’s company name. Provider may also permit beqom SA to do the same. Provider retains all Intellectual Property Rights in such Services Analyses.
Injunctive Relief. Each Party understands that the Confidential Information constitutes valuable business assets of the Disclosing Party and its disclosure may irreparably harm the Disclosing Party. In the event of breach or threatened breach of the terms of this Section 8, the Disclosing Party is entitled to seek injunctive relief and any other remedy available at law or equity.

9. WARRANTIES

Cloud Services Warranty. Provider warrants that: a) the Solution will, for the Subscription Term, perform in all material respects in accordance with the Functionalities set out in the Functionality Description and the Documentation; b) such Functionalities will not be materially decreased during the Subscription Term; c) and the Software will be free of Harmful Code.
Subject to Sections 9(3) and 9(5), Company’s sole and exclusive remedy, and Provider’s entire liability for breach of the limited warranty in Section 9(1), shall be correction of the warranted non-conformity. If, after using reasonable commercial efforts, Provider fails to correct the deficient Cloud Service to achieve in all material respects the functionality described in the Documentation or the Functionality Description within three (3) months of the notification of the non-conformity by Company, Company shall be entitled to terminate the Agreement and receive a pro-rata refund of the subscription fees paid under the applicable Order Form for its use of the Cloud Services for the terminated portion of the Subscription Term.
The foregoing warranty shall not apply to the extent: the Cloud Services are not being used in accordance with the EULA or this Master Agreement; or any non-conformity is caused by any third-party products, content or service (other than third-party technology that may be appropriate or necessary for use with the Cloud Services or the Platform as specified in the Functionality Description or the Documentation, as applicable) being accessed through the Cloud Services that are identified as third-party products, content or service. -Professional Services Warranty. Provider warrants that: a) it and each of its personnel has the necessary knowledge, skills, experience, qualifications, and resources to perform the Professional Services specified in the applicable Statement of Work; and b) the Professional Services will be performed for and delivered to Company in a diligent, workmanlike and professional manner consistent with generally accepted industry practices. -Warranty Claims. Company shall notify Provider of the alleged warranty breach in writing within thirty (30) days of Company’s discovery thereof. The notice shall include a precise description of the problem and all relevant information reasonably necessary for Provider in order to rectify such breach.
The warranties stated in this Section 9 are the sole warranties and remedies for Company and exclusive obligations of Provider related to the Cloud Services and/or Professional Services to be provided to Company pursuant to these terms and any Order Form. There are no other warranties or conditions, express or implied, including without limitation, those of merchantability, satisfactory quality or fitness for a particular purpose.

10. INTELLECTUAL PROPERTY

-Background Intellectual Property. Nothing in this Master Agreement or any Agreement shall affect the ownership by either Party of its Pre-Existing Intellectual Property. -Company Intellectual Property. Company owns and retains all right, title, and interest in and to Company Data, Company Materials and any Output. Provider shall have the right to use Company Materials solely for the purpose of providing the Cloud Services or Professional Services to Company under the Agreement. -Provider Intellectual Property. All rights, title, and interests in and to the Cloud Services, the Cloud Materials, the Professional Services (excluding any Company Materials or Company Data) as well as any derivative works thereof, and all Intellectual Property Rights embodied therein shall be the sole and exclusive property of Provider or its licensors. Except for the limited subscription rights granted herein, Company has no right, title or interest in or to the Software or any Intellectual Property Rights in the Cloud Services.

11. THIRD-PARTY CLAIMS

Indemnification by Provider. Provider shall defend Company against claims brought against Company by any third-party alleging that Company’s use of the Cloud Services, in accordance with the terms and conditions of the EULA and the Master Agreement, constitutes a direct infringement or misappropriation of such third-party’s Intellectual Property Right. Provider will pay damages finally awarded against Company (or the amount of any settlement Provider enters into) with respect to such claims, and reasonable attorney’s fees. This obligation shall not apply if the alleged infringement or misappropriation results from use of the Cloud Services by Company in conjunction with any other software or service not supplied by or approved of by Provider.
Provider may, at its sole option and expense: a) procure for Company the right to continue using the Cloud Services; or b) replace or modify the Cloud Services to be non-infringing.
If Provider provides written notice to Company that the foregoing options are not reasonably available, Provider or Company may terminate the relevant Agreement and Provider shall refund to Company all prepaid fees for the remainder of the term of the Agreement after the date of termination. -Defense and Settlement. The above indemnification obligations are conditioned on: a) Company timely notifying Provider in writing of any such claim; b) Provider having the right to fully control the defense of such claim; c) and Company reasonably cooperating in the defense of such claim.
Any settlement of any claim shall be for money damages only and shall not include a financial or specific performance obligation on or admission of fault, guilt or liability by Company against Provider, provided however that Provider may settle such claim on a basis requiring Provider to substitute for the allegedly infringing Cloud Services any alternative substantially equivalent non-infringing Cloud Services. Neither Party shall undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation that is prejudicial to the other Party’s rights.The Company acknowledges that it may not use or otherwise exploit the Service or Deliverables outside the scope and purpose of the Agreement. Unless otherwise agreed the Company will not have right to sublicense, assign or otherwise transfer the rights granted in this Section 10 or in the Agreement.
The provisions of this Section 11 state the sole, exclusive, and entire liability of Provider and its licensors to Company, and is Company’s sole remedy, with respect to third-party claims covered hereunder and to the infringement or misappropriation of third-party Intellectual Property Rights

12. DATA SECURITY

-Security Measures. Provider shall: a) store and process Company Data strictly as necessary to carry out its obligations hereunder, and for no other purpose; b) implement user identification and access controls designed to limit access to Company Data to Users; and c) implement and maintain sufficient technical, organizational and administrative security measures to keep Company Data protected in accordance with the Data Processing Agreement. -Disaster Recovery. Provider shall maintain and follow a disaster recovery plan designed to maintain Company’s access to the Cloud Services and to Company Data, and to prevent the unintended destruction of Company Data, which plan shall provide regular back-ups of Company Data residing on the Platform. -Monitoring. Provider shall conduct regular testing (including penetration tests) of the systems and procedures. Provider shall promptly notify Company if any of the Company Data or electronic forms of Company’s information is lost, becomes corrupted, is damaged or is deleted accidentally.

Provider and its Subcontractors may use tools, including but not limited to scripts, software and utilities to monitor and administer the Cloud Services and to help resolve Company’s Cloud Services requests. Such tools shall not collect, report or store any of Company Data residing in the service production environment, except as necessary to troubleshoot service requests or imminent or major security threats or incidents in the Cloud Services.

13. DATA PRIVACY

-Compliance. Provider and Company shall comply with the terms of the Data Processing Agreement.

Company shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of Company Data. Provider shall not be held liable, in any way, for the collection, use and generally for the processing of Company Data by Company.

14. LIABILITY

-Direct damages. Subject to Sections 14(2) (Exceptions) and 14(4) (Super cap), and without prejudice to Section 14(3) (Indirect damages), under no circumstances and regardless of the nature of any claim shall either Party (or their respective Affiliates or Provider’s licensors) be liable to each other or any other person or entity under the Agreement for an amount of direct damages in excess of the fees paid for the Cloud Services and the Professional Services in the twelve (12) month period preceding the date of the incident giving rise to such liability. -Exceptions. The above limitation does not apply to liability arising from: (a) death or personal injury caused by a Party’s negligence; (b) any breach of the provisions under the intellectual property and license Sections; or (c) willful conduct or gross negligence. -Indirect damages. Subject to Section 14(4), in no event shall either Party be liable to anyone under or in relation to the Agreement or its subject matter (whether such liability arises due to negligence, breach of contract or for any other reason) for any loss of profits, loss of revenue, loss of or damage to business or reputation, loss of contracts or customers, loss of any software or data, wasted management or other staff time, losses or liabilities under or in relation to a contract concluded with a third-party, or indirect, punitive, special, incidental, or consequential losses or damages. -Super cap. The total aggregate liability of either Party to the other Party or any third-party for all damages, whether direct, incidental, consequential or indirect, arising out of or in connection with (i) a security incident giving rise to a Personal Data Breach (as defined in the Data Processing Agreement); or (ii) the unauthorized use or disclosure of Confidential Information of the Disclosing Party in breach of Section 8 (Confidentiality), shall not exceed three times (3x) the fees paid or payable for the Cloud Services and Professional Services in the twelve (12) month period preceding the date of the incident that gave rise to liability.

The essential purpose of this Section 14 is to limit the potential liability of the Parties arising from the Agreement. The Parties acknowledge that the limitations set forth in this Section 14 are integral to the amount of fees charged in connection with the performance of the Cloud Services and Professional Services and that, where Provider was to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher. The Parties further acknowledge that the liability limitations set forth in this Section 14 include any claims against employees of, Subcontractors of, or any other persons authorized by, either Party.

15. SUBCONTRACTING

Subcontractors. Provider uses beqom SA as a Subcontractor for the provision of the Cloud Services under the Agreement. Provider may also use other Subcontractors to provide all or part of the applicable Cloud Services and/or Professional Services. Provider is responsible for breaches of the Agreement caused by its Subcontractors in relation thereto. -Sub-processing. Subcontractors sub-processing Company Personal Data in connection with Cloud Services and/or Professional Services are specified in the Data Processing Agreement. Company may object to new subprocessors in accordance with the procedure provided under the Data Processing Agreement.

16. MISCELLANEOUS

-Relationship of the Parties. The Parties to the Agreement are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties is created by the Agreement. -Notices. Any notice, report, approval or consent required or permitted hereunder shall be in writing and will be deemed to have been given: (i) upon receipt or refusal if delivered personally, by courier or by express service, (ii) five business days if mailed by registered or certified mail postage prepaid, (iii) the next business day if sent by reputable overnight courier, to the respective addresses of the Parties set forth in the Agreement, or (iv) when delivered by email. -Governing Law and Dispute Resolution. The Agreement will be governed by and construed in accordance with the substantive laws of: a) Finland, if the Company is located in Finland; b) Sweden, if the Company is located in Sweden; or c) the country in which the Provider is located, if the Company is located in any other country.

If Finnish law applies to the Agreement, the following applies: Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, will be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators will be one. The seat of arbitration will be Helsinki, Finland, and the language of the arbitration will be Finnish or English.

If Swedish law applies to the Agreement, the following applies: Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, will be finally settled by arbitration administered by the SCC Arbitration Institute (“**SCC**”). The Rules for Expedited Arbitrations will apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules will apply. In the latter case, the SCC will also decide whether the Arbitral Tribunal will be composed of one or three arbitrators. The seat of arbitration will be Stockholm. The language to be used in the arbitral proceedings will be Swedish or English.

-Confidentiality of arbitration. The Parties agree to keep confidential the arbitration proceedings (including any information exchanged in the course thereof) and the award in accordance with the confidentiality provision of this Agreement. In the event this Agreement or a part thereof is assigned to a third-party, such third-party will automatically be bound by the arbitration clause.

Export. Each Party is responsible for complying with import, export and economic sanction laws and regulations that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users.
Force Majeure. Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing Party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance. Each Party shall use reasonable efforts to mitigate the effect of a force majeure event and to perform its obligations under the Agreement as soon as reasonably possible when the force majeure event ends. If such event continues for more than thirty (30) days, each Party may cancel unperformed Cloud Services and/or Professional Services upon written notice. This Section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures.
Assignment. Neither Party shall, without the other Party’s prior written consent, assign, delegate, pledge or otherwise transfer partially or totally the Agreement to any third-party; such authorization not to be unreasonably withheld. Notwithstanding the foregoing, either Party may assign one or several Agreements or any rights and/or obligations thereunder upon written notice and without consent of the other Party: a) subject to Section 16(8) to any successor pursuant to a merger, consolidation, sale of all or substantially all of its assets, or all or a substantial portion of the business to which the Software or the Cloud Services relates; or b) to an Affiliate; provided the assignee agrees in writing to be bound by the obligations of the assignor contained in the relevant Agreement and, in the case of an assignment to an Affiliate, the assigning Party shall remain liable for all of the assigned obligations and liabilities.
Change of Control of Company. In the event that ownership of or control over fifty percent (50%) of the voting stock of Company is acquired directly or indirectly by any person, corporation or other business entity which is a competitor of Provider or beqom SA in the remuneration advisory or compensation management software industry (“Change of Control”), then Provider shall be entitled to terminate all the Agreements immediately upon written notice to Company. Company shall provide at least ninety (90) days’ prior written notice of any such change of control. -Divestment. If Company divests a division, company or other entity within its corporate structure (a “Divested Entity”), then Company may continue to allow such Divested Entity use of the Cloud Services, the Platform and the Solution provided under the relevant Agreement subject to the following terms and conditions: a) the Divested Entity is not a competitor of Provider or beqom SA in the remuneration advisory or compensation management software industry; b) Company shall endeavor to provide Provider with not less than ninety (90) days’ prior written notice of any proposed divestment as the circumstances permit (including taking into account confidentiality obligations and subject to Company’s reasonable business judgment); c) Company may make an Apportionment (as that term is defined below) to the Divested Entity and the Divested Entity shall be entitled to continue to enjoy the benefit of such Apportioned Cloud Services provided by Provider which Company is receiving pursuant to the Agreement until the earlier of the expiry or termination of the Agreement, the respective Order Form, or the execution of a separate agreement between the Divested Entity and Provider as contemplated under Section 16(9)(d). “Apportionment” means any apportionment as between Company and the Divested Entity, of (i) the right to receive all or part of the Cloud Services; and (ii) payment of any corresponding fees by Company to Provider, as applicable, made by Company for the purposes of this Section 16(9) and “Apportioned” shall be construed accordingly; d) Without prejudice to the preceding provisions of Section 16(9)(c), to the extent required by the Divested Entity, Provider shall provide the Apportioned Cloud Services to the Divested Entity by way of a separate agreement subject to the Divested Entity and Provider reaching agreement on the Cloud Services to be provided by Provider to the Divested Entity. Following from the separate agreement being concluded between the Divested Entity and Provider, the Subscription Fees payable by Company will be adjusted commensurately by removing that portion of the Subscription Fees relevant to the Apportioned Cloud Services which will then be allocated and adjusted, if necessary, to the Divested Entity; e) The Divested Entity will not be entitled to enforce the Agreement against Provider until such time as the separate agreement has been concluded pursuant to Section 16(9)(d); f) Company shall be responsible for compliance by such Divested Entity with the terms and conditions of the Agreement, including payment of any associated charges until such time as a divestment agreement has been signed with the Divested Entity. Upon expiry or termination of the Agreement with Company, the Divested Entity shall not be entitled to the benefit of the Agreement or the Cloud Services save to the extent that Provider has agreed to provide the Cloud Services to the Divested Entity by way of the separate agreement. -Modification and Waiver. The Agreement may be modified solely in writing signed by both Parties. A delay or failure to exercise or partially exercise any right under the Agreement does not operate as a waiver, nor will it preclude future exercise of that right or permit, or sanction any subsequent breach of any term or condition.
Modification and Waiver. The Agreement may be modified solely in writing signed by both Parties. A delay or failure to exercise or partially exercise any right under the Agreement does not operate as a waiver, nor will it preclude future exercise of that right or permit, or sanction any subsequent breach of any term or condition.
Survival. Any provision, which requires performance after the termination or expiration of an Agreement, which by their nature are intended to survive or relate to events that may occur after the termination or expiration thereof, will survive the termination or expiration of such Agreement.
No Third-Party Beneficiary. No provisions hereunder are intended or shall be construed to confer upon or give to any person or entity other than Provider and Company any rights, remedies or other benefits, save for what has been provided about beqom SA’s position as a third-party beneficiary in the EULA.
Entire Agreement. The Agreement and any information or documents which are incorporated therein by reference, are the entire agreement between the Parties with respect to Company’s purchase of the Cloud Services or Professional Services, and supersedes and replaces any previous communications, representations or agreement, oral or written. Any different or additional terms and conditions provided by Company to Provider are considered material alterations to the Agreement, expressly rejected and will not be binding upon Provider. Any reference to additional terms stated in a purchase order or any associated ancillary document issued by Company is solely for Company’s convenience in record keeping, and no such reference or any delivery of Cloud Services or Professional Services to Company following receipt of any purchase order shall be deemed an acknowledgement of or agreement to any terms or conditions associated with any such purchase order or in any way be deemed to modify, alter, supersede or supplement the Agreement.

Master Software as a Service Agreement.