These Special Terms For Cloud Services (“Cloud Terms”) are entered into as of the Effective Date by and between
The Customer and Dajon Data Management Limited,a company duly organized and existing under the laws of England, having its registered office at Beaumont House, Cray Valley Road, Orpington, BR5 2UB and VAT number 73117062, registered at Companies House 3662467, acting in its own name and in the name and on behalf of its Affiliates, hereby represented by its duly appointed representatives (hereinafter referred to as “Service Provider”)
The parties therefore hereby agree as follows:
In these Cloud Terms, the following expressions shall have the following meaning:
“Acceptance” has the meaning as per clause 9;
“Customer Material(s)” includes without limitation text, documents, data, files (including hypertext markup language files), audio and visual information, graphics, scripts, programs, applets or servlets that Customer creates, installs, uploads to or transfers in or through the Service or provides in the course of using the Service, any equipment, tools, drawing and specifications provided or made available to the Service Provider by Customer as well as any Customer-provided software, logos, domain names, links, graphics, audio, video, and any data) that Customer makes available for use by Users by means of the Services and any suggestions, enhancement requests, feedback, or recommendations provided by Customer or its Users relating to the Service or the Technical Documentation, including all Customer Intellectual Property Rights as well as any derivatives and/or improvements thereof;
“Effective Date” means the date above specified;
“Service(s)” shall mean the software and infrastructure in a cloud hosted environment provided and maintained by Service Provider and/or to which Customer is being granted access under these Cloud Terms via a web site or another designated IP address. Service or Services includes Product Support Services and Application Support Services described in these Cloud Terms;
“Service Levels” shall mean the conditions and availability of the Services as set out in any Statement of Work, Order and/or Local Agreement;
“User(s)” means Customer’s employees, directors, representatives, consultants, contractors, or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer or by Service Provider on Customer’s behalf.
2. Incorporation of Master Agreement
2.1. These Cloud Terms incorporate all clauses, provisions, terms, conditions and obligations of the Master Agreement including, without limitation, those related to and/or liability/insurance, damages, confidentiality, intellectual property, termination, consequences of termination, dispute resolution and governing law.
In the event of any conflict and/or inconsistency between the terms of these Cloud Terms and the Master Agreement, the Cloud Terms shall prevail to the extent of the conflict and/or inconsistency.
3.1. For the purposes of these Cloud Terms, the sections relating to interpretation in section 2.1 of the Master Agreement apply to these Cloud Terms.
4. Scope of these Terms
4.1. These Cloud Terms govern the performance of the Services provided and/or to be provided by the Service Provider in relation to any Statement of Work and/or Order and supersedes all previous discussions, correspondence and negotiations between them relating to the Services. If any services, functions or responsibilities not specifically described in these Cloud Terms are inherent subtasks of the Services and are reasonably necessary for provision of the Services, they shall be deemed to be implied by, and included within, the scope of the Services to the same extent and in the same manner as if specifically described in these Cloud Terms.
5. Provision of Services
5.1. In consideration of the Price paid by Customer under any Order attached to these Cloud Terms, Service Provider agrees to provide Customer access to the Service. Specific components of the Service to be provided to Customer are as outlined in the Statement of Work, Order and/or Local Agreement.
5.2. Subject to the terms and conditions of these Cloud Terms, Service Provider grants to Customer the nontransferable, nonexclusive worldwide right to permit Users to (a) use the Service (b) display and print Customer Data, and (c) use the Technical Documentation in accordance with these Cloud Terms. For purpose of this license grant, “Customer” shall include any outsourced or other third-party consultants or similar personnel supporting Customer as part of its typical business practices, acting under Customer’s direction and for whom Customer is fully responsible hereunder.
5.3. Customer acknowledges and agrees that the rights granted herein are subject to all of the following restrictions:
(i) the maximum number of Users that Customer authorizes to access the Service shall not exceed the maximum number of Users set out in any Statement of Work, Order and/or Local Agreement;
(ii) licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users;
(iii) save for Customer Affiliates, Customer shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Service available to any third party other than an authorized User;
(iv) Customer shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Service, including without limitation access the Service or Technical Documentation in order to build a similar or competitive product or service;
(v) Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Service;
(vi) Customer acknowledges and agrees that Service Provider or its Subcontractor shall own all right, title and interest in and to all intellectual property rights in the Service and the Technical Documentation, save for Customer Material;
(vii) Customer does not acquire any rights in the Service or Technical Documentation, express or implied, other than those expressly granted in these Cloud Terms and all rights not expressly granted to Customer are reserved by Service Provider; and
(viii) these Cloud Terms is not a sale and does not convey any rights of ownership in or related to the Service and/or Technical Documentation to Customer.
5.4. For avoidance of doubt, by providing Customer with the Services, Service Provider does not acquire any right, title and/or interest in the Customer Material content.
5.5. Service Provider shall provide and assign unique password and user names to each authorized User. Customer acknowledges and agrees that Customer is prohibited from sharing passwords and or user names with unauthorized Users. Customer agrees to notify Service Provider if Customer becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords, user names, and/or account number. Service Provider agrees to promptly and without delay reset any and all usernames and/or passwords if so requested by Customer.
5.6. Service Provider shall immediately notify Customer and take appropriate remedial measures in the event of any unauthorized use of any password or account or any other known or any suspected security breach, hack attacks, data loss, data corruption, intentional and/or negligent disclosure of Customer Material and/or Confidential Information whatsoever.
5.7. Customer expressly consents to Service Provider’s transmission and/or storage of Customer Material in accordance with any Statement of Work, Order and/or Local Agreement.
6. Service Provider’s Obligations and Warranties
6.1. Without prejudice to any provisions set out in the Master Agreement and incorporated herein by reference, the Service Provider warrants during the Term of these Cloud Terms, that: (i) it will, at a minimum, utilize and maintain the disaster recovery, business continuity and backup procedures as agreed between the Parties in the Statement of Work. In the event of a breach of this provision, Service Provider will use commercially reasonable efforts to correct Customer Data or restore Customer Data within three (3) business days unless agreed otherwise in any Statement of Work;
(ii) if so requested by the Customer, the Service Provider shall promptly provide and make available to the Customer any and all documentation evidencing compliance by the Service Provider with the warranty contained in this clause 6 above.
7. Change and Modifications
7.1. To the extent possible, Service Provider shall not be entitled to change or modify the Services without the prior written consent of the Customer where the changes or modifications have or are likely to have a material adverse effect on the Services. In any event, Service Provider shall notify Customer at least 30 days prior to implementing any change and/or modification to the Services that has a material adverse effect on the Services. Service Provider may make temporary changes required by an emergency and shall take all reasonable measures to contact an appropriate Customer manager for obtaining prior approval. Service Provider shall document and promptly report such emergency changes to Customer as soon as practical, but in no event later than five (5) Business Days after the change is made. An emergency situation shall include those which result in business interruption or a condition which may adversely impact the business if not handled immediately. Service Provider agrees to use this clause only in an emergency.
7.2. The Customer may, at any time, request a change to the scope of the Services under the Order. In such a case, the Service Provider shall, within a reasonable time indicated by the Customer, provide a new written estimate to the Customer regarding the time and cost required to implement the Customer’s request.
8. Technology Refresh
8.1. Service Provider may introduce new technologies, design innovation and/or technical improvements that may impact and/or apply to the Services. The Service Provider will use its reasonable efforts to inform and offer to the Customer any technical improvement or innovation developed by the Service Provider in relation to the Statement of Work.
9. Testing and Acceptance
9.1. Without prejudice to the Service Provider’s warranty obligations set forth in clause 6 above, upon performance of the Services, the Customer may choose to proceed, directly or through a third party, to a verification of the Services in order to assess compliance with the Statement of Work and/or Regulatory Requirements (“Acceptance”). The Customer will bear all costs arising from such verification.
9.2. Upon completion of the testing operations, if any, the Customer, or its third party nominee, shall prepare, sign and deliver to the Service Provider, an acceptance report containing the results of the testing operations, and which either (i) confirms that the Services are fully compliant with the Statement of Work, Order or (ii) states any error, defect or non-conformity and, whenever possible, the reasons for such error, defect or non-conformity and proposed remedial actions.
9.3. If, as a result of the testing operations, any material error, defect or non-conformity is found, the Customer shall have the right at its own discretion, to proceed with one of the following options:
(i) to require the Service Provider to adopt, at its own expense, appropriate actions to remedy such error, defect or non-conformity within a stated timeframe, reasonably indicated by the Customer, and having regard to the kind of error, defect or non-conformity and thereafter to proceed to a further testing operations, in accordance with the provisions of this clause 9.3(i), or
(ii) to accept the Services, subject to Service Provider’s prior agreement on a reduction of the Price, or
(iii) to reject the defective and/or non-compliant Services. 9.4. The testing operations and the Customer’s acceptance of the Services under this clause 9 shall not affect the Service Provider warranty obligations set forth in clause 6 below.
10. Technical Documentation and Training
10.1. The Service Provider shall maintain copies of any and all the Technical Documentation prepared or developed in connection with and/or relevant to the Services in accordance with any applicable Regulatory Requirements to prove that the Service Provider has provided the Services strictly in accordance with the Statement of Work and/or Regulatory Requirements. Service Provider shall also provide copies of all such Technical Documentation to Customer upon demand.
10.2. In the manner and for the period set out in the Statement of Work, the Service Provider commits to make available to the Customer, a training team composed of Service Provider employees, in order to support Customer’s employees in the use and maintenance of the Deliverables. The Parties hereby acknowledge that the Price shall include such a training activity. The training activity shall not release the Service Provider from any kind of liability due to any error, defect or non-conformity of the Services.
11. Service Levels
11.1. Regular evaluation and review of the performance of the Services provided by the Service Provider shall be made by the Customer in accordance with the Service Levels agreed between the Parties under any Statement of Work. The evaluation shall be carried out on a quarterly basis and will be used as a basis for the continuous improvement efforts by the Service Provider in executing the the Statement of Work.
11.2. Without prejudice to the right to suspend and/or terminate these Cloud Terms under clause 13 below and/or under any clause of Master Agreement incorporated herein by reference, any failure in complying with the service levels shall release the Customer from bonus malus requirements under the Statement of Work, if any.
12. Intellectual Property Rights
12.1. Customer acknowledges and agrees that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Customer further acknowledges and agrees that the content or information presented to the Customer through the Service may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Unless stated otherwise, nothing in the Contract shall be construed to confer any license or transfer by one Party of its (or a third party’s) intellectual property rights to the other Party, whether by estoppel, implication, or otherwise. Without limiting the generality of the foregoing, any names, trademarks, service marks, logos and product service names of a Party cannot be used by the other Party in any manner without prior written consent of the first Party.
12.2. Service Provider grants to Customer a worldwide, non-exclusive, non-transferable, royalty-free, licence to download, copy, or otherwise use the Services and/or Technical Documentation from Service Provider’s systems. Customer grants to Service Provider a non-exclusive, royalty-free licence to process Customer Data for the purposes of providing the Services.
12.3. In case the Service Provider becomes aware of any infringement or threatened infringement of the Customer’s or Customer Affiliate’s Intellectual Property Rights, the Service Provider shall promptly notify in writing the Customer. To the extent that any Intellectual Property Rights supplied to the Customer under these Cloud Terms are created by Personnel of the Service Provider, the Service Provider shall obtain an unconditional assignment from such Personnel to enable the assignment and/or transfer of any such Intellectual Property Rights to the Customer and/or to any of the Customer’s Affiliate.
12.4. The use of the name(s) and/or trademark(s) of the Customer and/or of any of the Customer’s Affiliates by the Service Provider in any commercial and advertising activity or otherwise shall be subject to the prior written agreement between the Parties.
13. Suspension of Services
13.1. Customer may, with prior written notice of at least 15 days to the other Party, suspend the use of Services if it concludes that continued access and/or usage of the Services will cause immediate and ongoing harm. Customer shall not be required to pay for the entire duration of the suspension under this clause 13.1.
13.2. Service Provider shall provide Customer with its schedule of planned maintenance activities and their impact on the Services at least 6 months in advance. Service Provider shall give Customer prior written notice of at least 15 Business Days in the event it needs to carry out unscheduled maintenance activities. Service Provider shall consult the Customer on the appropriate time for any major release.
14.1. These Cloud Terms shall be effective as of the Effective Date and shall remain in force for 1 year (“Term”). Customer is not obligated to use exclusively the Services of the Supplier.