This MSA governs the access to and use of the Online Service, whether on a free trial or
purchased subscription basis.
All capitalised terms used in this MSA have the meanings ascribed to them in Section 1 of
- DOCUMENTS FORMING AGREEMENT
The documents forming this MSA are this document (the “Main Document”), Schedule A –
General Terms and Conditions and Schedule B – Technical Support and the Order Forms, which
are incorporated by reference into the MSA and bind the Parties. Reference to a Schedule
includes any appendices thereto.
GENERAL TERMS AND CONDITIONS
The following terms have the following meanings:
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Authorised Users” means Customer’s or its Affiliates’ employees, consultants, contractors, agents, suppliers, stakeholders or other third parties who are authorised by Customer or its Affiliates to access and use the Online Service and who have been supplied user identifications and passwords for such purpose.
1.3 “Unisaas Ltd Access Codes” has the meaning set out in Section 4.4.
1.4 “Unisaas Ltd Parties” has the meaning set out in Section 6.1.
1.5 “Confidential Information” has the meaning set out in Section 7.1.
1.6 “Customer” has the meaning set out in Section Error! Reference source not found. of the Main Document.
1.7 “Customer Data” means all data submitted, stored, posted, displayed, transmitted, or processed by Customer using the Online Service.
1.8 “Disclosing Party” has the meaning set out in Section 7.1.
1.9 “Documentation” means the online user instructions and help files made available by Unisaas Ltd as part of the Online Service, as may be updated from time to time by Unisaas Ltd.
1.10“Effective Date” means the last (or only) date of the signatures on the Main Document.
1.11“Feedback” has the meaning set out in Section 6.1.
1.12 “Main Document” means the main document of this MSA, to which this Schedule is attached.
1.13 “Online Service” means the range of management software suites and technologies provided in software as a service form by Unisaas Ltd, including: (a) all proprietary technology (software, hardware, algorithms, code, processes, user interfaces, know-how, techniques, templates, designs and other tangible or intangible
technical material or information) of Unisaas Ltd, its licensors and service providers used by Unisaas Ltd to
provide the Online Service, (b) system administration, system management, and system monitoring activities performed by Unisaas Ltd in connection with the software applications made available by Unisaas Ltd; and (b) associated technical support and software maintenance Online Service, as may be applicable.
1.14 “Order Form” means the invoice issued by Unisaas Ltd to confirm and document the description, quantity and prices for the Online Service purchased from Unisaas Ltd pursuant to this MSA. Order Forms are deemed incorporated in this MSA. Customer Affiliates may also purchase Online Service in accordance with the terms of this MSA by executing one or more Order Forms referencing this MSA.
1.15 “Receiving Party” has the meaning set out in Section 7.1.
1.16 “Subscription Term” has the meaning set out in Section 11.1.
1.17 “Taxes” has the meaning set out in Section 5.6
1.18 “Third Party Offerings” means software or services delivered or performed by third parties independently of Unisaas Ltd in relation with the Online Service, or other online, web-based mapping services or other business application services, and any associated offline products provided by third parties, that interoperate with the Online Service.
1.19 “Trial Online Service” has the meaning set out in Section 2.1.
1.20 “Trial Online Service Term” has the meaning set out in Section 2.1.
2 FREE TRIAL ONLINE SERVICE
2.1 Provision of Free Trial Online Service. If Unisaas Ltd has made the Online Service available on a free trial basis (“Trial Online Service“) and Customer has registered for such Trial Online Service, Unisaas Ltd will make the Trial Online Service available to Customer until: (a) the end of the then-current trial period offered by Unisaas Ltd, unless otherwise extended by Unisaas Ltd in its discretion, (b) the start date of any paid subscription for Online Service ordered by Customer, or (c) the date on which Unisaas Ltd elects in its sole discretion to terminate Customer’s access to Trial Online Service (“Trial Online Service Term“). Customer acknowledges and agrees that: (i) the features and functionality of the Online Service may be limited during the Trial Online Service Term, and (ii) if Customer exceeds any applicable eligibility requirements for Trial Online Service (for example, limitations on number of projects or users, or use of enhanced or premium functionality), Customer may be required to pay fees for such excess usage as a condition to retaining Customer’s eligibility to receive Trial Online Service. Except as specifically set forth in this Section 2, this MSA applies to Customer’s use of the Online Service during the Trial Online Service Term. Additional trial terms and conditions may appear on the registration web page for the Trial Online Service. Any such additional terms and
conditions are incorporated into this MSA by reference, are legally binding and will govern in the event of a conflict with this MSA.
2.2 Customer Data for Trial Online Service.
ANY CUSTOMER DATA ENTERED INTO THE ONLINE SERVICE DURING THE TRIAL ONLINE SERVICE TERM AND ANY CHANGES MADE TO THE CUSTOMER DATA BY OR FOR CUSTOMER DURING THE TRIAL ONLINE SERVICE TERM MAY BE PERMANENTLY LOST UNLESS CUSTOMER: (A) PURCHASES A SUBSCRIPTION TO THE SAME ONLINE SERVICE AS THOSE COVERED DURING THE TRIAL ONLINE SERVICE TERM, (B) PURCHASES UPGRADED
ONLINE SERVICE, OR (C) EXPORTS ITS CUSTOMER DATA BEFORE THE END OF THE TRIAL ONLINE SERVICE TERM.
2.3 As-Is Use. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS MSA, INCLUDING WITHOUT LIMITATION SECTIONS 4.1.3, 8.1, AND 9.1, DURING THE TRIAL ONLINE SERVICE TERM, THE TRIAL ONLINE SERVICE ARE PROVIDED BY UNISAAS LTD “AS-IS” WITHOUT ANY WARRANTY, SUPPORT OR INDEMNIFICATION OF ANY KIND.
3 PURCHASED ONLINE SERVICE
3.1 Provision of Online Service. Unisaas Ltd will make any purchased Online Service available to Customer pursuant to this MSA and the relevant Order Form(s) during the Subscription Term. Unisaas Ltd may modify the Online Service at any time but agrees that it will provide a reasonable prior notice of such modifications to the Customer, the length of such notice being established in good faith by Unisaas Ltd in connection with the importance of the contemplated change (i.e. – Unisaas Ltd will provide a longer prior notice for an important modification than it will for a minor one). Customer agrees that Unisaas Ltd will not be liable to Customer or any third party for any modification of the Online Service. Customer agrees that its purchase of Online Service is not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Unisaas Ltd regarding future functionality or features. Customer’s use of the Online Service includes the right to access all functionality available in the purchased Online Service as of the effective date of the Order Form. Subsequent enhancements to the Online Service made generally available to all subscribing customers will be made available to Customer at no additional charge. However, new features, functionality or enhancements to the Online Service may be marketed separately by Unisaas Ltd and may require the payment of additional fees. Unisaas Ltd will determine, in its sole discretion, whether access to such new features, functionality or enhancements will require an additional fee. Unless otherwise set out in an Order Form, this MSA will apply to any updates, upgrades and new modules or offerings subsequently provided by Unisaas Ltd to Customer as part of any purchased Online Service. Customer may purchase additional Online Service, such as to allow additional users to use the Online Service, by executing additional Order Forms. The Subscription Term of such added Online Service will be coterminous with the then-current Subscription Term as set forth in the Order Form. Customer acknowledges that Unisaas Ltd has no delivery obligation and will not ship copies of the Unisaas Ltd IMSTM software to Customer as part of the Online Service or pursuant to this MSA.
4 USE OF ONLINE SERVICE.
4.1 Unisaas Ltd Obligations.
4.1.1 Availability. Unisaas Ltd will use commercially reasonable efforts to make the Online Service available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Unisaas Ltd will endeavour to provide at least 48 hours advance notice, except for routine maintenance times, or (b) any unavailability
caused by circumstances beyond Unisaas Ltd’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, Internet service provider failures or delays, or the unavailability or modification by third parties of Third Party
4.1.2 Provisioning of the Online Service.
Unisaas Ltd will host or use a third party to host the Online Service and may update the functionality and user interface of the Online Service from time to time in its sole discretion as part of its ongoing improvement of
the Online Service. The Online Service may be subject to certain limitations, such as, for example, limits on storage capacity for Customer Data, or on the number of page views by Authorised Users or visitors, and any such limitations will be specified either in the Order Form or in the Documentation.
4.1.3 Technical Support. Unisaas Ltd will provide Customer with the level of support described in Schedule B.
4.1.4 Use and Protection of Customer Data and Personal Information. Subject to this MSA, including Unisaas Ltd’s confidentiality obligations, Customer hereby grants Unisaas Ltd a limited, nonexclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Unisaas Ltd to provide the Online Service to Customer. To the extent that receipt of the Customer Data requires Unisaas Ltd to utilise any account information from a third party service provider, Customer is responsible for obtaining and providing relevant account information and passwords, and Unisaas Ltd hereby agrees to access and use the Customer Data solely for Customer’s benefit and as set forth in this MSA. While Unisaas Ltd will maintain reasonable administrative, physical and technical safeguards for the protection of the confidentiality and integrity of Customer Data and will provide the Online Service in accordance with applicable laws and government regulations regarding personal information protection, as
4.2 Customer’s Responsibilities. Customer must not allow access to, or use of, the Online Service by anyone other than Authorised Users. Customer is responsible for its Authorised Users’ compliance with this MSA, for its Authorised Users’ use of the Online Service, and for ensuring that Authorised Users maintain the confidentiality of their passwords and user names. Customer agrees that it will not: (a) license, sublicense, sell,
resell, rent, lease, transfer, assign, distribute, timeshare or otherwise commercially exploit the Online Service or make the Online Service available to any third party, other than to Authorised Users or as otherwise contemplated by this MSA; (b) use the Online Service to collect, transmit or process (i) any material that is infringing, obscene, threatening, libellous, or otherwise unlawful or tortious, including material that is harmful to children or violates third party privacy rights; (b) use the Online Service to send, store, publish, post, upload or otherwise transmit any malware, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (c) interfere with or disrupt the integrity or performance of the Online Service; (d) attempt to gain unauthorised access to the Online Service or their related systems or networks; (e) use or knowingly permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Online Service; (f) access the Online Service for the
purpose of building a similar or competitive product; (g) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Online Service or any part thereof or otherwise attempt to discover any source code or modify the Online Service.
4.3 Temporary Suspension. Unisaas Ltd monitors all use of the Online Service for security and operational purposes. Unisaas Ltd may temporarily suspend Customer’s or its Authorised Users’ access to the Online Service in the event that either Customer or its Authorised User is engaged in, or Unisaas Ltd in good faith suspects Customer or its Authorised User are engaged in, any unauthorised conduct (including any violation of this MSA, any applicable law or third party right, including the terms of any Third Party Offering on which Customer’s use of the Online Service relies). Unisaas Ltd will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Unisaas Ltd’s exercise of the suspension rights herein will not be conditioned upon Customer’s receipt of any notification. Customer agrees to notify Unisaas Ltd immediately of any unauthorised use of any password or account or any other known or suspected breach of security related to the Online Service; and (ii) not impersonate another User or provide false identity information to gain access to or use the Online Service. A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include Affiliate and/or Authorised Users subaccounts, if any. Customer agrees that Unisaas Ltd will not be liable to Customer or to any Affiliate or
Authorised User or any other third party if Unisaas Ltd exercises its suspension rights as permitted by this Section.
4.4 Third-Party Web Sites, Products and Online Service. The Online Service may rely on or require that Customer accesses Third Party Offerings. If Customer elects to use the Online Service with Third Party Offerings, Customer agrees that: (i) its use of Third Party Offerings must at all times comply with the terms of service governing such offerings, and (ii) Unisaas Ltd has the right to export and import Customer Data to and
from such Third Party Offerings for purposes of delivering the Online Service purchased by Customer. Customer’s or its Authorised Users’ use of third party websites and Online Service must always comply with the terms of service governing such websites and Online Service. Customer understands and agrees that the availability of the Online Service, or certain features and functions of the Online Service, are dependent on the corresponding availability of Third Party Offerings or specific features and functions of Third Party
Offerings. Unisaas Ltd will not be liable to Customer or any third party if changes in Third Party Offerings
cause the unavailability of the Online Service or any feature or function of the Online Service. Unisaas Ltd may also refer Customer to third party service providers that offer Third Party Offerings. Unisaas Ltd does not make any representations or warranties regarding any such Third Party Offerings, whether or not such Third Party
Offerings or Online Service are designated by Unisaas Ltd as “certified,” “approved,” “recommended” or otherwise, or the Online Service are provided by a third party that is a member of a Unisaas Ltd partner program. To the extent that Unisaas Ltd requires that Customer grant Unisaas Ltd authorisations, passwords or other user credentials to a Third Party Offering (“Unisaas Ltd Access Codes“) to retrieve Customer Data or to enable interoperability with the Online Service, Customer will promptly provide such Unisaas Ltd
Access Codes. Unisaas Ltd will not share, reassign, divulge or disclose any Unisaas Ltd Access Codes
except to Unisaas Ltd employees or authorised contractors specifically engaged in the performance of the Online Service. Unisaas Ltd Access Codes constitute Customer’s Confidential Information under this MSA.
4.5 Excess Data Storage Fees. The maximum disk storage space provided to Customer at no additional charge is 100 GB. For any storage over 100 GB Unisaas Ltd will charge additional storage fees at its then-applicable rate. Unisaas Ltd will use reasonable efforts to notify Customer when the average storage used reaches approximately 90% of the maximum; however, any failure by Unisaas Ltd to so notify Customer will not affect Customer’s responsibility for such additional storage charges.
4.6 Process Audit. As part of its due diligence process and on an ongoing basis, Unisaas Ltd ensures that datacentres hosting facilities meet Service Organisation Control (SOC 1 and SOC 2) as well as SSAE16 reports. Audits for these reports are conducted periodically in accordance with the Statement on Standards for Attestation Engagements No. 16 (SSAE 16) professional standard. The SOC 1 report audit attests that our data control objectives are appropriately designed and that the individual controls defined to safeguard customer data are operating effectively. This audit is the replacement of the Statement on Auditing Standards No. 70 (SAS 70) Type II report. Unisaas Ltd intends to continue to obtain the appropriate security certifications and conduct audits to demonstrate the security of its infrastructure and Online Services.
5 FEES AND PAYMENT TERMS
5.1 Fees. Customer agrees to pay all fees specified in all Order Forms using one of the payment methods Unisaas Ltd supports. Customer agrees to pay Unisaas Ltd in the currency specified on the Order Form. Except as otherwise specified in this MSA or in an Order Form, (i) fees are based on the Online Service purchased, regardless of usage, (ii) payment obligations are non-cancellable and fees paid are non-refundable, and (iii) the
purchased Online Service cannot be decreased during the relevant Subscription Term on the Order Form. All amounts payable under this MSA will be paid without setoff or counterclaim, and without any deduction or withholding.
5.2 Invoices and Payment. All Online Service fees will be invoiced in advance and in accordance with the applicable Order Form. Except as otherwise set forth in the applicable Order Form, Customer agrees to pay all invoiced amounts upon receipt of invoice.
5.3 Overdue Charges. If Unisaas Ltd does not receive fees by the due date, then at Unisaas Ltd’s discretion, (i) such charges may accrue late interest at the rate of 15% per annum, calculated on a monthly basis on the outstanding balance, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (ii) Unisaas Ltd may condition future Online Service purchases and Order Forms on payment terms shorter than those specified in Section 5.2.
5.4 Suspension of Service. If any amounts owed by Customer for the Online Service are thirty (30) or more days overdue, Unisaas Ltd may, without limiting Unisaas Ltd’s other rights and remedies, suspend Customer’s and its Authorised Users’ access to the Online Service until such amounts are paid in full.
5.5 Payment Disputes. Unisaas Ltd agrees that it will not exercise its rights under Section 5.3 or 5.4 if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
5.6 Taxes. The amount of all fees specified in an Order Form are exclusive of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, “Taxes“) and Customer is solely responsible for the payment of all such Taxes, arising from Unisaas Ltd’s provision of the Online Service hereunder, except any taxes assessed on Unisaas Ltd’s net income. If Unisaas Ltd is required to directly pay Taxes related to Customer’s use of the Online Service hereunder, Customer agrees to promptly reimburse Unisaas Ltd for any amounts paid by Unisaas Ltd.
6 PROPRIETARY RIGHTS
6.1 Online Service. Unisaas Ltd, its licensors and its service providers (together the “Unisaas Ltd
Parties“) own all right, title and interest in and to the Online Service, including all related intellectual
property rights. Unisaas Ltd reserves all rights not expressly granted to Customer under this MSA.
Neither Customer nor any Authorised User will delete or in any manner alter the copyright,
trademark, and other proprietary notices of Unisaas Ltd appearing on the Online Service or any portion thereof. Additionally, Unisaas Ltd exclusively owns all right, title and interest in and to all suggestions, enhancement requests, recommendations or other feedback provided by Customer and its Authorised Users relating to the Online Service (“Feedback“), and Customer hereby assigns to Unisaas Ltd all its right, title, and interest in and to the Feedback, including all intellectual property rights. At Unisaas Ltd’s reasonable request
and expense, Customer will execute necessary documents and take such further acts as Unisaas Ltd may reasonably request to assist Unisaas Ltd to acquire, perfect and maintain such Intellectual Property Rights in the Feedback.
6.2 Customer Data. As between Unisaas Ltd and Customer, Customer exclusively owns all right, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this MSA.
6.3 Statistical Information. Unisaas Ltd may monitor Customer’s use of the Online Service and use data related to Customer’s use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Online Service or to support benchmarking or similar features of the Online Service. Customer agrees that Unisaas Ltd may make such information publicly available, if such information does not incorporate any Customer Data and/or identify Customer or its Confidential Information. Unisaas Ltd retains all intellectual property rights in such statistical and performance information.
7.1 Definitions. “Confidential Information” means all confidential or proprietary information of a party (the “Disclosing Party“) disclosed to the other party (the “Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limiting the scope of this confidentiality undertaking, the parties acknowledge and agree that: (a) Customer Confidential Information includes the Customer Data; (b) Unisaas Ltd Confidential Information includes the Online Service; and (c) Confidential Information of each
party includes the terms and conditions of this MSA, pricing and other terms set out in Order Forms hereunder, as well as marketing plans, budgets, financial information, technology, technical information, methods, processes, techniques, designs, computer programs and other business information disclosed by such party.
7.2 Treatment of Confidential Information. The Receiving Party must: (a) use the same degree of care to protect the confidentiality of the Disclosing Party’s Confidential Information that it uses to protect its own Confidential Information (but in no event less than reasonable care); and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this MSA, except with the Disclosing Party’s permission.
7.3 Exceptions. Confidential Information does not include information that: (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party; (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.
7.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable law, regulation or legal process. The Receiving Party must, however: (i) provide the Disclosing Party with prompt written notice of the requirement to disclose, (ii) provide the Disclosing Party with reasonable assistance in the event the Disclosing Party wishes to oppose or contest such
disclosure, and (iii) limit its disclosure to what is strictly required by law, regulation or legal process.
7.5 Injunctive Relief. The Parties agree that any unauthorised disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other
8 WARRANTIES; DISCLAIMERS
8.1 Warranties. Each party warrants that it has the legal authority to enter into this MSA. Unisaas Ltd warrants to Customer that the Online Service will materially conform with the relevant Documentation.
8.2 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1, THE UNISAAS LTD PARTIES MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE IN CONNECTION WITH THIS MSA OR THE ONLINE SERVICE. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY SET OUT IN SECTION 8.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE UNISAAS LTD PARTIES
EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES INCLUDING ANY WARRANTIES OF NONINFRINGEMENT,
MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE UNISAAS LTD PARTIES DO NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE ONLINE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERRORFREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE ONLINE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE ONLINE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE ONLINE SERVICE WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE ONLINE SERVICE WILL BE CORRECTED; OR (F) THE ONLINE SERVICE OR THE SERVER(S) THAT MAKE THE ONLINE SERVICE AVAILABLE ARE FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. THE ONLINE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC
COMMUNICATIONS. THE UNISAAS LTD PARTIES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
9.1 Indemnification by Unisaas Ltd. Unisaas Ltd, at its expense, will defend and pay any settlement amounts and damages, costs and expenses (including reasonable attorneys’ fees) awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding alleging that Customer’s use of the Online Service in accordance with this MSA infringes a third party’s copyright or patent issued as of the Effective Date. The foregoing obligations do not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data (ii) use of the Online Service in combination with any software, hardware, network or system not supplied by Unisaas Ltd where the alleged infringement relates to such combination, (iii) any modification or alteration of the Online Service other than by Unisaas Ltd, (iv) Customer’s continued use of the Online Service after Unisaas Ltd notifies Customer to discontinue use because of an
infringement claim, or (v) Customer’s violation of applicable law. If any claim which Unisaas Ltd is obligated to defend has occurred, or in Unisaas Ltd’s determination is likely to occur, Unisaas Ltd may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the allegedly infringing item, (b) substitute a functionally equivalent, non-infringing replacement for such item, (c) modify such item to make it non-infringing and functionally equivalent, or (d) terminate this MSA and refund to Customer any prepaid amounts attributable to the period of time between the date Customer was unable to use the Online Service due to such claim and the remaining days in the then-current Subscription Term.
9.2 Indemnification by Customer. Customer, at its expense, will defend and pay any settlement amounts or damages awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding (i) alleging that the Customer Data infringes any trade secret, trademark, copyright, or patent issued as of the Effective Date; or (ii) arising from occurrence of the conditions set forth in Section 9.1(i)-(v) above.
9.3 Conditions. The parties’ obligations under this Section 9 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim under this Section, (ii) giving the indemnifying party sole control of the defence or settlement of the claim, and (iii) cooperating in the investigation and defence of such claim(s). The indemnifying party must not settle or consent to judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional
obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 9 are subject to the limitations and exclusions set forth in Section 10 below and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable third party claim.
10 LIMITATION OF LIABILITY
10.1 Limitation of Liability. EXCEPT AS SET FORTH IN SECTION 10.3 BELOW, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS MSA, WHETHER PURSUANT TO CONTRACTUAL OR EXTRACONTRACTUAL LIABILITY, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID TO UNISAAS LTD BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING DOES NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5.
10.2 Exclusion of Consequential and Related Damages. EXCEPT AS SET OUT IN SECTION 10.3 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE ONLINE SERVICE AND/OR THIS MSA, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE ONLINE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE ONLINE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF UNISAAS LTD AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE REASONABLY FORESEEN THEM.
10.3 Exceptions. THE LIMITATIONS AND EXCLUSIONS OF SECTIONS 10.1 AND 10.2 ABOVE DO NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS.
11 TERM AND TERMINATION
11.1 Term of Subscriptions to Online Service. Customer’s right to use the Online Service begins on the start date specified in the Order Form and continues for the period set out therein (each a “Subscription Term“).
11.2 Termination for Cause. This MSA and applicable Order Forms may be terminated by either party for cause as follows: (i) upon thirty (30) days written notice if the other party breaches or defaults under any material provision of this MSA and does not cure such breach prior to the end of such thirty (30) day period, (ii) effective immediately and without notice if the other party ceases to do business, or otherwise terminates its business operations, except as a result of an assignment permitted hereunder. Unisaas Ltd may temporarily cease performance of its obligations during any Customer cure period.
11.3 Retrieval of Customer Data. In the event of termination or expiration of the Subscription Term under an Order Form and provided no amount is then owed to Unisaas Ltd by Customer, upon Customer’s request made within 30 days after the effective date of applicable termination or expiration, Unisaas Ltd will make Customer Data available for download by Customer in CSV or PDF format. After such 30-day period, Unisaas Ltd will have no obligation to maintain or provide any Customer Data and will thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
11.4 Survival. Except to the extent expressly provided to the contrary herein, Sections 6 through 12 will survive the termination of this MSA.
12.1 Relationship. Unisaas Ltd and Customer are independent contractors, and this MSA does not create a partnership, joint venture, employment or agency relationship between the parties. This is a non-exclusive arrangement.
12.2 Waiver. No waiver of any breach of this MSA, and no course of dealing between the parties, will be construed as a waiver of any subsequent breach of this MSA.
12.3 Severability. If any provision of this MSA is held by a court of competent jurisdiction to be invalid or unenforceable, the provision will be modified and interpreted by the court so as best to accomplish the intent of the original provision. The invalidity or unenforceability of any provision will not affect any of the other provisions of this MSA.
12.4 Governing Law and Venue. This MSA will be governed by and construed under the laws in force within the United Kingdom, excluding its conflict of law rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this MSA. The courts located in Manchester, UK will have exclusive jurisdiction to adjudicate any dispute relating to this MSA. Each party hereby irrevocably consents to the exclusive jurisdiction of such courts.
12.5 Publicity. After obtaining Customer’s written consent, Unisaas Ltd may reference and use Customer’s name and trademarks and may disclose the nature of the Online Service provided hereunder in Unisaas Ltd business development and marketing efforts, including without limitation its web site.
12.6 Assignment. Customer may not assign this MSA, or Order Forms to any third party without the prior written consent of Unisaas Ltd, such consent not to be unreasonably withheld. Any purported assignment in violation of this Section shall be void. This MSA binds and benefits the parties, their respective successors and permitted assigns. There are no third party beneficiaries to this MSA.
12.7 Notices. Unisaas Ltd may give notice to Customer by means of a general notice through the Online Service interface, electronic mail to Customer’s e-mail address on record in Unisaas Ltd’s account information, or by written communication sent by postal mail or nationally recognised overnight delivery service to Customer’s address on record in Unisaas Ltd’s account information. Customer may give notice to Unisaas Ltd by electronic
mail or by written communication sent by postal mail or nationally recognised overnight delivery service addressed to Unisaas Ltd Insight House, Denton Drive, Northwich, Cheshire, CW9 7LU, UK, Attention: Legal
Department. Notice will be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to this MSA shall be in the English language.
12.8 Local Laws and Export Control. Each party will comply with applicable export laws and regulations in providing and using the Online Service. Without limiting the foregoing, (i) each party represents that it is not named on any U.K. government list of persons or entities prohibited from receiving exports, and (ii) Customer must not permit Authorised Users to access or use Online Service in violation of any U.K. export embargo,
prohibition or restriction.
12.9 Force Majeure. Except for performance of a payment obligation, no party will be liable under this MSA for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labour disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. If the force majeure event continues for more than thirty (30) calendar days, then either party may terminate the MSA for convenience upon written notice to the other party.
Help Desk Response and Resolution Times:
Help desk response time and resolution of problems will be measured for service calls (telephone or email) placed by Customer to Unisaas Ltd’s help desk each calendar month. Unisaas Ltd’s response time to service
calls to the help desk will be measured as the time between the reception of a call or email and the
acknowledgement of its reception by Unisaas Ltd during regular business hours (Monday to Friday, 9am to
4:30pm – GMT). Unisaas Ltd’s resolution time of problems reported in a service call will be measured as the time between the acknowledgement of the reception of the service call by Unisaas Ltd and the implementation by Unisaas Ltd of a fix or workaround for the problem reported. The Service Level for response and resolution times to service calls:
|Severity||Target Response Time||Target Resolution Time|
|1 – High||4 hours||24 hours|
|2 – Medium||8 hours||5 Business Days|
|3 – Low||8 hours||Next release|
For the purposes of this Section, the severity level and corresponding description referred to in the table
above have the following meanings:
Severity 1 – High – A Severity 1 Problem arises when the Online Service cannot be accessed or is unable to
function properly and no workaround is immediately available.
Severity 2 – Medium – A Severity 2 Problem arises when a major feature or functionality is not available or
not functioning properly and use of the Online Service is severely reduced or impacted.
Severity 3 – Low – A Severity 3 Problem arises when a minor problem exists with the Online Service and a
workaround is available or when the problem is cosmetic.