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SearchMaster Services Agreement (US)
This Master Services Agreement (“MSA”) shall become effective (“Effective Date”) upon the date the first order form is signed by both Parties and sets out the terms and conditions between Tacton Systems AB, a Swedish Corporation with its principal place of business at Klara Norra Kyrkogata 33, SE-111 22 Stockholm, Sweden (“Tacton”) and the customer as set out in the order form (“Customer”), as further specified in service specific schedules (“Schedules” and together with the MSA, the “Agreement”). From time to time Customer and Tacton may enter separately signed Statements of Work (“SOW(s)”) and order forms (“Order Forms”) each of which will incorporate the terms and conditions of the Agreement. Tacton and Customer are jointly herein referred to as “Parties” and, solely, as “Party”.
Tacton will provide the software as a service (“SaaS Services”) and project services (“Project Services”) (together, the “Services”) and deliverables (“Deliverables”) specified in the applicable SOWs and Order Forms subject to the terms and conditions in this MSA and any Services-specific terms and conditions as defined in any Schedules. No Services or Deliverables are provided directly under this MSA but only under individually executed SOWs and Order Forms.
Certain Definitions
“Acceptance” means the process by which Customer accepts the Project Services as more fully described in the Project Services Schedule and Project Services SOW.
“Affiliate” of a Party means any entity whether incorporated or not, that is controlled by, controls, or is under common control with that Party. “Control” means the ability, whether directly or indirectly, to direct the affairs of another entity by means of ownership, contract or otherwise.
“Claim Against Customer” has the meaning given in Section 5.1.
“Claim Against Tacton” has the meaning given in Section 5.2.
“Confidential Information” has the meaning given in Section 7.1.
“Customer” means the Customer named above together with its Affiliates that have signed separate Order Forms and/or SOW(s).
“Customer Data” means electronic data and information submitted by or for Customer to the Services or collected and processed by or for Customer using the Services, excluding Non-Tacton Applications.
“Data Processing Agreement” or “DPA” means, if applicable, the data processing agreement entered into between Tacton and Customer and attached hereto.
“Documentation” means the then-current written materials relating to the features, functions and use of the Services, as such materials are updated from time to time by Tacton, provided via login to the Services.
“Feedback” has the meaning given in Section 4.4.
“External User” means an individual who is not an employee, contractor or consultant to Customer but who is authorized by Customer to use Services. Limitations of the Services’ functionality apply to External Users (e.g. admin access) as described in the Documentation.
“Initial Term” means the initial term specified in an Order Form.
“Intellectual Property Rights” means all inventions, patents, copyrights, trade secrets, trade names, know-how, moral rights, and all other intangible proprietary or property rights, whether or not patentable (or otherwise subject to legally enforceable restrictions or protections against unauthorized third-party usage), and any and all applications for, and extensions, divisions, and reissuances of, any of the foregoing, and rights therein, and whether arising by statute or common law, anywhere in the world.
“Internal User” means an individual who is an employee, contractor or consultant to Customer authorized by Customer to use a Service, for whom Customer has ordered the Service, and to whom Customer (or when applicable, Tacton at Customer’s request) has supplied a user identification and password but excluding External Users.
TACTON CONFIDENTIAL INFORMATION
“Malicious Code” means any unauthorized code, virus, Trojan horse, worm or other software routine or hardware components designed to permit unauthorized access, disable, erase, or otherwise harm data, software or hardware.
“Non-Tacton Application” means a software application which interoperates with the SaaS Services provided by Customer or a third party (i.e., not provided by Tacton).
“Personal Data” has the meaning given in Section 7.2.
“Pre-Existing IP” has the meaning given in Section 4.5.
“Session” means an API request to the SaaS Services as described in the Documentation and/or Order Form. Configuration of several products for one User counts as several Sessions.
“Taxes” has the meaning given in Section 2.3.
“Tenant” means a unique and complete SaaS tenant including both administration and front-end.
“User” means an Internal User or External User.
“Warranty Period” has the meaning given in Section Error! Reference source not found.
1. Provision of Services
Tacton will perform or provide for Customer the SaaS Services, Project Services and create the Deliverables specified in, and in accordance with the terms of, Order Forms and SOWs subject to the terms of this Agreement which are agreed to and signed by both parties. Each SOW and Order Form will incorporate the terms and conditions of this MSA. In the event of conflict between these documents, the following will control in descending order of priority: the terms of any SOW or Order Form, a Schedule to this MSA and then the MSA.
2. Fees and Payment
2.1 Fees. Customer shall pay all fees specified in the applicable SOW and/or Order Form. Except as otherwise specified herein or in an SOW or Order Form, (i) fees are based on Project Services performed, SaaS Services subscriptions purchased and/or Sessions, (ii) SaaS Services payment obligations are non-cancellable and fees paid are non-refundable except as specifically set forth herein, and (iii) SaaS Services quantities purchased cannot be decreased during the relevant subscription term or license term. Upon renewal of any Order Form, license or subscription term, Tacton may increase the fees for the SaaS Services, based on the increase in the US Employee Cost Index (ECI), Source: U.S. Bureau of Labor Statistics, Industry: Service-providing industries during the period from the latest of either the Effective Date or the last indexation, plus five (5) percent annually. Notwithstanding the foregoing, any renewal in which subscription volume for SaaS Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing or any stipulated cap on fees at renewal.
2.2 Invoicing and Payment. Customer is responsible for providing complete and accurate billing and contact information to Tacton and notifying Tacton of any changes to such information. Customer purchase orders are for administrative convenience only and not a condition of issuing an invoice or collecting payment. Any terms in a purchase order or Customer order documentation are void and unenforceable, and the Agreement terms shall prevail. Fees for SaaS Services and Subscription License fees (including Maintenance fees and Support Services fees) will be invoiced annually in advance unless otherwise specified in the relevant Order Form, or as otherwise specified herein, and fees for Project Services will be invoiced as specified in the Project Services Schedule or SOW, as applicable. Invoices will be sent to Customer’s e-mail address for invoices specified in the Order Form. Invoiced charges are due 30 days from the invoice date and shall be paid by wire transfer. Payments that are more than 30 days overdue are subject to (i) interest of 1% per month, or the maximum permitted by law, whichever is less; and (ii) without limiting its other rights and remedies, suspension of Services until unpaid amounts have been paid. Tacton will not charge late interest or exercise its suspension rights for unpaid amounts if Customer is disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
TACTON CONFIDENTIAL INFORMATION
2.3 Taxes. Tacton’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Tacton has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 2.3, Tacton will invoice Customer and Customer will pay that amount unless Customer provides Tacton with a valid tax exemption certificate authorized by the appropriate taxing authority.
2.4 Future Functionality. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Tacton regarding future functionality or features.
3. Warranties, Representations, Disclaimers
3.1 Project Services Warranty. To the extent Customer uses the Project Services as authorized by the Agreement and the applicable SOW Tacton warrants that the Project Services will be performed by qualified personnel in a timely, professional and workmanlike manner, consistent with the prevailing industry standards and that, for a period of thirty (30) days following the Acceptance Date (as defined in the Project Services Schedule), the Deliverables will materially comply with their applicable specifications as set forth in the applicable SOW. Tacton’s sole and exclusive responsibility, and Customer’s sole and exclusive remedy will be for Tacton to rectify any Project Services not materially in compliance with this warranty, provided Customer notifies Tacton in writing of such non-compliance within 30 days following the completion of such Project Services.
3.2 SaaS Services Warranty. To the extent Customer uses the SaaS Services as authorized by the Agreement and the applicable Order Form, Tacton warrants that during the term (i) Customer’s production Tenants of the SaaS Services shall materially conform to the Documentation and (ii) that the functionality of the SaaS Services available at the time of the Order Form shall not materially decrease during the term. Tacton also represents, warrants and covenants to Customer that: (a) the SaaS Services will be provided by qualified personnel in a timely, professional and workmanlike manner, consistent with the prevailing industry standards; and (b) Tacton has complied and will comply with all laws and regulations applicable to Tacton and to the extent required to provide the SaaS Services to Customer, and will obtain and maintain all permits and licenses required of Tacton in connection with its obligations under this Agreement.
3.3 Mutual Representations. Each Party represents that it is a business organization duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, has all requisite power and authority to carry on its business and to own and operate its properties and assets; it has obtained all authorizations, consents and approvals, governmental or otherwise, necessary for the execution and delivery of this Agreement, and to otherwise perform its obligations under this Agreement; there is no pending or, to its knowledge, threatened litigation involving it which would have any material adverse effect on this Agreement or on its ability to perform its obligations hereunder; and there is no agreement to which it is a party or by which it is bound which prohibits or would prohibit the execution and delivery by it of this Agreement or the performance or observance by it of any material term or condition of this Agreement.
3.4 Customer Warranties. Customer represents and warrants that it will comply with all applicable laws and that all Customer Data will be accurate, and Customer will have all legal rights and permissions to provide such Customer Data to Tacton for use in the Services or inclusion in the Deliverables. Customer acknowledges and agrees that the input of data and accuracy and adequacy thereof, including the output generated as a result of such input, is under Customer’s exclusive control. Any use made by Customer of the data output, or any reliance thereon, is Customer’s sole responsibility.
3.5 Protection of Customer Data. Tacton will maintain administrative, physical, and technical safeguards designed for the protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Tacton’s personnel except (i) to provide and improve the Services and prevent or address service or technical problems, (ii) as compelled by law, or (iii) as Customer expressly permits in writing.
TACTON CONFIDENTIAL INFORMATION
3.6 DISCLAIMER. Tacton provides no warranty regarding, and will have no responsibility for any claim arising out of a modification of a Deliverable or Services by anyone other than Tacton or use of the Deliverables or Services for purposes of or in any manner other than as authorized pursuant to the Agreement, the applicable Services Schedule or the applicable Order Form or SOW. The sole and exclusive remedy for Customer in relation to breach of warranty claims pursuant to this Section 3 shall be for Tacton to repair, replace or re-perform the non-conforming SaaS Services or Project Services at no additional charge to the Customer and, if Tacton cannot make the Project Services or SaaS Services conform with commercially reasonable efforts, Customer may terminate the applicable Order Form or SOW, in which case Tacton would return the pro-rata share of Customer’s prepaid fees allocable to the remaining term, or for Project Services, Customer shall be entitled to a reasonable reduction of fees for the non-conforming Project Services, following the effective date of such termination. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TACTON DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO ANY ASPECT OF ITS PERFORMANCE UNDER THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, AND THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, ARE EXPRESSLY EXCLUDED AND DISCLAIMED. TACTON MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR RESULTS OF THE USE THEREOF WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, APPLICATIONS, SYSTEM, OR OTHER SERVICES, OR BE ERROR FREE, SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
4. Intellectual Property
4.1 Ownership. As between the Parties, Tacton shall retain all right, title and interest in and to the Services and Documentation including all modifications, derivative works or improvements, and all related Intellectual Property Rights. Customer acknowledges that third-party software may be embedded or otherwise delivered with the Services. Customer may only use such third-party software as integrated with and part of the Services. The licensors of the third-party software are intended beneficiaries of this Agreement, as it pertains to Customer’s rights to use such software. This MSA is not a sale of SaaS Services and does not convey to Customer any rights of ownership in or related to the Services or Documentation. Tacton reserves all Intellectual Property Rights in the Services and Documentation which it has not expressly granted to Customer under this Agreement.
4.2 License by Customer to Use Customer Data and Applications. Customer grants Tacton and its Affiliates a royalty-free, fully-paid, non-exclusive, non-transferable (except as set forth in Section 13 (Assignment)), sub-licensable, worldwide right to host, use, copy, transmit, process, and display Customer Data, and any Non- Tacton Applications and program code created by or for Customer pursuant to this Agreement, as necessary for Tacton to provide the Services in accordance with this Agreement. Except for the licenses granted herein, Tacton acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-Tacton Application, or Customer or third-party program code.
4.3 Customer Data. As between Customer and Tacton, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data, and hereby warrants that it has and will have all rights and consents necessary to allow Tacton to use all such Customer Data as contemplated by this Agreement.
4.4 Feedback. Customer may provide at its discretion, or Tacton may request, input or feedback regarding the Services, including, without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of a portion of the Services, Documentation or another Tacton site, service or product (“Feedback”). Customer acknowledges and agrees that any Feedback will be considered the sole property of Tacton, will constitute Confidential Information of Tacton and Customer hereby assigns to Tacton all right, title and interest in and to such Feedback. Tacton will be entitled to use Feedback for any purpose without restriction or remuneration of any kind.
TACTON CONFIDENTIAL INFORMATION
4.5 Pre-Existing IP. Each Party (or its licensors as applicable) shall retain ownership of its Intellectual Property Rights which were existing prior to the Agreement, or Intellectual Property Rights developed, licensed or acquired by or on behalf of a Party or its licensors independently from the Services or the Deliverables, in each case including any modifications or derivative works thereof which may be created as part of the Services (collectively “Pre-Existing IP”). For clarity, Tacton’s Pre-Existing IP includes without limitation all utility routines, generalised interfaces, algorithms, ideas, techniques, concepts, proprietary processes, tools, methodologies, training materials and manuals incorporated into or provided in connection with the Services. Customer grants to Tacton (and its subcontractors), during the term of the Agreement, a non-exclusive, fully paid, worldwide, non-transferable, limited license to use Customer’s Pre-Existing IP (and shall obtain the same license/consent as required from any third party), solely for the purpose of providing the Services and Deliverables. All Intellectual Property Rights in the Deliverables remains in and/or is assigned to Tacton.
4.6 Residual Knowledge. Each Party is free to use concepts, techniques and know-how retained in the unaided memories of those involved in the performance or receipt of the Services. Tacton is not precluded from independently developing for itself, or for others, anything, whether in tangible or non-tangible form, which is competitive with, or similar to, the Deliverables provided so long as such developments do not contain Customer Confidential Information. Certain Tacton assets (e.g. software, or platforms etc.) may include third-party intellectual property, such as licensed third-party assets or licensed third-party components, or may require additional terms of usage, which will be provided by Tacton where applicable.
4.7 Use of Aggregate Data. Customer agrees that Tacton may collect, use and disclose quantitative data derived from the use of the Services for industry analysis, benchmarking, analytics, marketing, and other business purposes. All data collected, used, and disclosed will be in aggregate form only and will not identify Customer or its Users.
5. Indemnity
5.1 Indemnification by Tacton. Tacton will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any portion of the SaaS Services infringes or misappropriates such third party’s Intellectual Property Rights (a “Claim Against Customer”), and will indemnify Customer from any damages, reasonable attorney fees and costs finally awarded against Customer as a result of a Claim Against Customer, provided Customer (a) promptly gives Tacton written notice of the Claim Against Customer, (b) gives Tacton sole control of the defense and settlement of the Claim Against Customer (except that Tacton may not settle any Claim Against Customer that imposes any liability on Customer without first obtaining Customer’s consent to such settlement), and (c) gives Tacton all reasonable assistance, at Tacton’s expense. If Tacton receives information about an infringement or misappropriation claim related to the SaaS Services, Tacton may in its discretion (i) modify the SaaS Services so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Customer’s continued use of the SaaS Services in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for the affected SaaS Services upon 30 days’ written notice and refund Customer the pro-rata share of Customer’s prepaid fees for the impacted SaaS Services allocable to the remaining term following the effective date of such termination. Tacton will have no liability (and Customer shall be required to pay any Tacton expenses incurred pursuant to the preceding sentence) to the extent the alleged infringement or misappropriation was caused by: (1) Customer’s modifications to any Intellectual Property Rights or Deliverable; (2) Customer’s use of the Intellectual Property Right or Deliverable other than as permitted under the Agreement or in combination with any products or services not authorized by Tacton; (3) the failure to use corrections or enhancements to the SaaS Services, Intellectual Property Rights or Deliverable provided by Tacton; or (4) specifications or direction provided by Customer.
5.2 Indemnification by Customer. Customer will defend Tacton against any claim, demand, suit or proceeding made or brought against Tacton (a) by a third party alleging that any of Customer’s Data infringes or misappropriates such third party’s Intellectual Property Rights, or (b) arising from Customer’s use of the SaaS Services in violation of the Agreement, the Documentation, SOW, Order Form or applicable law (each a “Claim Against Tacton”); and Customer will indemnify Tacton from any damages, reasonable attorney fees and costs finally awarded against Tacton as a result of, a Claim Against Tacton, provided Tacton (i) promptly gives Customer written notice of the Claim Against Tacton, (ii) gives Customer sole control of the defense or settlement of the Claim Against Tacton (except that Customer may not settle any Claim Against Tacton that imposes any liability on Tacton without first obtaining Tacton’s consent to such settlement), and (iii) gives Customer all reasonable assistance, at Customer’s expense.
5.3 Exclusive Remedy. This Section 5 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any claim of infringement or misappropriation of Intellectual Property Rights.
TACTON CONFIDENTIAL INFORMATION
6. Liability
Except for each Party’s obligation of IPR indemnification set out in Section 5 and breach of applicable law, the sole liability of either Party to the other in relation to any and all claims in any manner related to the Agreement (whether in contract, tort, negligence, strict liability in tort, by statute or otherwise) will be for direct damages, not to exceed in the aggregate an amount equal to the total fees paid or payable to Tacton for the specific Services giving rise to the claim under the applicable SOW or Order Form during the twelve (12) months prior to the event giving rise to the claim. In no event will either Party be liable (whether in contract, tort, negligence, strict liability in tort, by statute or otherwise) for any consequential, indirect, incidental, special or punitive damages, loss of profits, business, opportunity or anticipated savings (whether directly or indirectly arising). Nothing in the Agreement excludes or limits either Party’s liability to the other which cannot lawfully be excluded or limited.
7. Confidential Information
7.1 Each Party may have access to information (in any form) that relates to the other Party and its activities which is identified by the disclosing Party as confidential or reasonably understood to be confidential or proprietary (“Confidential Information”). The receiving Party agrees that Confidential Information may only be used as required to perform its obligations under the Agreement and that it will protect Confidential Information in the same manner that it protects its own similar confidential information, but in no event using less than a reasonable standard of care. Confidential Information may only be disclosed to an employee, subcontractor or to a third-party if required for the purpose of the Agreement and provided such parties are bound by substantially similar obligations of confidentiality. Tacton may retain and use Confidential Information relevant to its business purposes (including to provide or enhance Services) so long as its use of such Confidential Information is in an aggregated and anonymized or pseudonymized manner. Nothing in the Agreement will prohibit or limit either Party’s use of information (i) previously known to it without an obligation not to disclose such information, (ii) independently developed by or for it without use of Confidential Information, (iii) acquired by it from a third-party which was not, to the receiver’s knowledge, under an obligation not to disclose such information, or (iv) which is or becomes publicly available through no breach of the Agreement.
7.2 Personal Data. Any Customer Data that identifies or directly relates to natural persons as may be further defined in applicable data privacy law (“Personal Data”) shall remain at all times the property of Customer. Except as expressly specified in the applicable SOW, the Parties acknowledge and agree that Tacton will not process Customer Personal Data as part of the Services, and both Parties will use commercially reasonable efforts to monitor and restrict such access. However, if Tacton knowingly receives Customer Personal Data (excluding business contact information such as name, telephone, address and email which Tacton will process as an independent Data Controller) from Customer that is not required to perform the Services, Tacton will notify Customer, return or destroy such Customer Personal Data (as instructed by Customer), and Customer shall take steps to promptly rectify the situation to prevent recurrence. If it is agreed in a SOW or otherwise that Tacton will process Customer Personal Data in connection with the provision of the Services, the general responsibilities of the Parties (with respect to the nature and purpose of such access, security controls and protocols, international transfer of data etc.) will be as set out in the DPA and Customer agrees it will not transmit any Personal Data to Tacton unless and until a DPA is mutually executed by the Parties. With respect to Customer Personal Data that is provided to and processed by Tacton, with the exception stated above, Customer shall be and remain the Data Controller and Tacton the Data Processor as those terms are defined in the DPA or applicable law. Each Party shall comply with its respective obligations as the Data Controller and Data Processor under applicable data protection laws and regulations.
8. Term and Termination
8.1 Term. This Agreement will remain in effect from the Effective Date until it is terminated as set forth herein.
8.2 Term of Subscriptions and Renewal. Subscriptions for SaaS Services are provided for the Initial Term specified in the Order Form or as otherwise specified in Section 1.5 of the SaaS Schedule. Unless terminated in writing by either Party not less than ninety (90) days before the end of the Initial Term or any renewal term, the term for Subscriptions will be extended for an additional year, each a “Renewal Term”. The per-unit pricing during any Renewal Term will be adjusted as stipulated in this Agreement.
8.3 Co-term. Unless otherwise specified in the applicable Order Form, additional subscriptions for SaaS Services may be added during the applicable subscription term prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (ii) the added User subscriptions shall terminate on the same date as the pre-existing User subscriptions.
TACTON CONFIDENTIAL INFORMATION
8.4 Termination Rights – Mutual. A Party may terminate this Agreement for cause (i) upon thirty (30) days’ prior written notice to the other Party of a material breach (or upon fifteen (15) days’ notice for Customer failure to pay undisputed amounts) if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Termination of a SOW does not affect the term of this MSA, Order Form under the Agreement, or the remaining term of any other SOW unless such material breach also constitutes a material breach of the applicable SOW. In addition, either Party may terminate this Agreement with thirty (30) days’ prior written notice if there is no effective Order Form for SaaS Services then in effect.
8.5 Termination Assistance Service. Upon Customer’s written request, which request is to be given at least ninety (90) days prior to the expiration date of an Order Form for SaaS Services, Tacton, subject to availability, will provide termination assistance services during an exit period for up to ninety (90) days on a time and material fees basis. Tacton’s obligation to provide terminations assistance shall not apply if the Agreement is terminated by Tacton because of (i) Customer’s failure to pay undisputed amounts or (ii) Customer’s uncured breach of this Agreement or the applicable Order Form or SOW. Notwithstanding the provisions of this Section 8.5, in no event shall Tacton be required to disclose any of its Confidential Information or provide a license under any of its Intellectual Property Rights to Customer or any third party as part of the Transition Services, and Customer shall continue to pay the subscription fees for the use of the Services during the transition period.
8.6 Refund or Payment upon Termination. If this Agreement is terminated by Customer for Tacton’s failure to cure a material breach during the cure period or other agreed timeframe, Tacton will refund Customer the pro rata share of Customer’s prepaid fees allocable to the remaining term following the effective date of such termination. If this Agreement is terminated by Tacton for Customer’s failure to cure a material breach, Customer will pay all unpaid fees for the remaining Term of all Order Forms as well as any demobilization costs associated with any SOW. In no event will termination relieve Customer of Customer’s obligation to pay any fees payable to Tacton.
8.7 Customer Data Portability and Deletion. Upon written request by Customer made within thirty (30) days after the effective date of termination or expiration of this Agreement, Tacton will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, Tacton will have no obligation to maintain or provide any Customer Data and may thereafter delete or destroy all copies of Customer Data in Tacton’s possession. Tacton shall provide a certification of deletion of Customer Data upon Customer’s request.
8.8 Suspension. Tacton may suspend Customer’s access to the Services at any time for the following reasons: (i) if any fees due and owing by Customer are thirty (30) days or more overdue; (ii) if Customer Data violates any law or causes or is likely to cause harm to the Tacton SaaS Services; (iii) if Tacton determines that suspension is necessary to protect Tacton or its other customers from a material operational or security risk to the Services or systems used to provide the Services, or (iv) if the suspension is ordered by a court or other tribunal. In the event of suspension in accordance with this section, Customer will remain liable for portions of the fees that would have been paid had the Services not been suspended.
9. Obligations Upon Termination
Upon the expiration or termination of this Agreement, an Order Form or a SOW for any reason, all licenses and associated rights granted to Customer under this Agreement and such Order Form and SOW shall immediately terminate and, upon request by Tacton, Customer agrees to (i) destroy Tacton’s Confidential Information, Documentation and materials pertaining to the terminated Services in its possession or control unless otherwise required by law; (ii) cease using the terminated Services and uninstall and cease using all Licensed Software; and (iii) confirm in writing that it has complied with the destruction instructions. Customer shall, upon Tacton’s request, confirm in writing that no materials pertaining to the Licensed Software or Services remain in the possession of Customer or any of its Affiliates.
10. Audit
Tacton may audit Customer’s use of the SaaS Services and on 10 days’ written notice and during Customer’s normal business hours. Customer will cooperate with the audit, including by providing access to any computers, records or other information that relate or may relate to Customer’s use of the SaaS Services. Such audit will not unreasonably interfere with Customer’s business activities. Tacton may not conduct an audit more than twice per year. In the event that an audit reveals unauthorized use of the SaaS Services, Customer will reimburse Tacton for the reasonable cost of the audit and pay any underpaid fees, in addition to such other rights and remedies of Tacton.
TACTON CONFIDENTIAL INFORMATION
11. Independent Contractor
Each Party is an independent contractor and does not have any authority to bind or commit the other. Nothing in the Agreement will be deemed or construed to create a joint venture, partnership, fiduciary or agency relationship between the Parties for any purpose.
12. Use of Name
Neither Party will use the other Party’s name or logo outside its company without prior written consent of the other Party. Notwithstanding the foregoing, Tacton shall be permitted to refer to Customer as a customer reference concerning the general area of work under the Agreement, or for opportunities at existing and prospective Tacton clients. Tacton may request, and Customer will provide, reasonable written or verbal verification of the engagement and general nature of the services to such Tacton clients (such verification not to be unreasonably withheld).
13. Assignment
Neither Party may assign the Agreement (other than, upon written notice, to a Party’s subsidiary or Affiliate) without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed. The Agreement shall be binding on each Party’s permitted assignees. If Tacton assigns this Agreement to its subsidiary or Affiliate, Tacton’s assignee shall be responsible for all liabilities and obligations so assigned, and Tacton shall no longer be obligated, as a principal or a guarantor, to Customer with respect to any of the duties, responsibilities and obligations so assigned from and after the effective date of such assignment.
14. Force Majeure
14.1 Neither Party shall be liable for any delays or failures in performance (other than payment obligations under this Agreement) caused by, or resulting from, conditions beyond the reasonable control of the performing Party, including, without limitation, the following force majeure events (“Force Majeure”) war, warlike hostilities, mobilization or general military call-up, civil war, terrorist threats or acts, riot or other civil unrest, virus or IT attacks, failures of a Party’s service providers, government order or law, strikes, labor stoppages, epidemic or pandemic, fire, flood, earthquake or explosion, or other similar events beyond the reasonable control of the impacted Party.
14.2 A Party invoking a Force Majeure shall immediately notify the other Party of the circumstances causing the Force Majeure, the anticipated length of its inability to perform, and the steps it is taking to resume full performance. If the period of non-performance exceeds thirty (30) days from the receipt of notice of the Force Majeure event, the Party whose ability to perform has not been so affected may terminate the impacted Order Form or SOW by giving written notice to the other Party.
15. Compliance with Laws and Export
Each Party will retain responsibility for compliance with all laws and regulations applicable to their respective businesses. Each Party will comply with applicable export control and sanctions laws with respect to the export or re-export of goods, software and technical data, or the direct product of the same, which includes abiding by all such regulations in respect of all information supplied by or on behalf of the other Party. Prior to providing Tacton any goods, software or technical data subject to export controls, Customer will provide written notice specifying the nature of the controls and any relevant export control classification numbers. Without limiting the foregoing, each Party represents that it is not named on any government list of persons or entities prohibited from receiving exports, and the Parties shall not, and shall ensure their respective employees or Users do not violate any export embargo, prohibition, restriction or other similar law in connection with this Agreement.
16. Miscellaneous
16.1 The Agreement sets out the entire understanding between the Parties and supersedes, without limitation, all prior discussions, communications, representations and arrangements between them with respect to its subject matter. If a court of competent jurisdiction finds any term of the Agreement to be invalid, illegal or otherwise unenforceable, such term will not affect the other terms of the Agreement and will be deemed modified to the extent necessary, in the court’s opinion, to render such term enforceable while preserving to the fullest extent permissible the intent and agreements of the Parties set out in the Agreement.
16.2 No waiver or modification of any provision of the Agreement will be effective unless it is in writing and signed by the Party against which it is sought to be enforced.
16.3 The delay or failure by either Party to exercise or enforce any of its rights under the Agreement is not a waiver of that Party’s right to later enforce those rights, nor will any single or partial exercise of any such right preclude any other or further exercise of these rights or any other right.
TACTON CONFIDENTIAL INFORMATION
16.4 Any notice or other communication provided under the Agreement will be in writing, addressed to such Party at the address set out in the Agreement, or upon electronic delivery by confirmed means.
16.5 Tacton may provide the Services and Deliverables through the use of subcontractors (including Tacton Affiliates as subcontractors), subject to remaining fully responsible for its subcontractors’ performance.
17. Governing Law
The Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. The Parties will make good faith efforts to resolve within 30 days any dispute in connection with the Agreement by escalating it to higher levels of management. Any dispute relating to the Agreement must be filed in state or federal courts of Illinois. To the extent it may be applicable, the Parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) from this Agreement.
TACTON CONFIDENTIAL INFORMATION
Software as a Service (“SaaS”) Schedule
This Software as a Service (“SaaS”) Schedule (“Schedule”) is a schedule to the Master Services Agreement entered into between Tacton and Customer (the “Agreement”). Tacton and Customer agree that the terms and conditions set forth in this Schedule will apply to any Order Form (as defined in the Agreement) that incorporate the terms of this Schedule by reference. All capitalized terms that are used herein without being defined herein will have the meanings given to such terms in the Agreement. The term of this Schedule shall commence on the Schedule Effective Date and shall continue until the expiration or termination of the last effective Order Form.
1. The SaaS Services
1.1 Provision of Services. Tacton will (i) make the SaaS Services available to Customer and Customer’s Affiliates in accordance with this Schedule and the Order Form, as applicable, (ii) provide applicable Tacton standard support for the SaaS Services to Customer as set forth in the Service Level Agreement attached as Exhibit A. Tacton will make one Tenant available to Customer unless Customer has purchased additional Tenants.
1.2 License Grant. Subject to Customer’s payment of fees and compliance with the terms of the Agreement, Tacton hereby grants Customer a non-exclusive, non-transferable, non-sub-licensable limited license during the applicable subscription term, (i) for the specified number of Users to access and use the SaaS Services described in one or more Order Forms, solely for Customer’s internal business purposes, which includes procuring SaaS Services for the benefit of, and use by, Customer’s Affiliates; and (ii) to use and make a reasonable number of copies of the Documentation as reasonably necessary to utilize the SaaS Services in accordance with the terms herein. For clarification purposes, no on-premise software license rights are granted herein. Tacton reserves all rights not expressly granted to Customer. Tacton reserves the right, in its sole discretion, to make any changes to the SaaS Services that it deems necessary or useful.
1.3 Subscriptions and Subscription Term. Unless otherwise provided in the applicable Order Form, SaaS Services are purchased on an Order Form as subscriptions for the specified subscription term identified in the Order Form. Additional subscriptions may be added during a subscription term at the pricing applicable to the then current subscription term, prorated for the portion of that subscription term remaining at the time the additional subscriptions are added.
1.4 Usage Limits. SaaS Services are subject to usage limits, including, for example, the quantities specified in Order Forms and data usage specified in the Documentation. Unless otherwise specified, (i) a quantity in an Order Form refers to Users, Tenants and Sessions and the Service may not be accessed by more than that number of Users, (ii) User’s passwords may not be shared with any other individual, and (iii) a User identification may be reassigned to a new individual replacing one who no longer requires on-going use of the Services. If the actual usage of the Services exceeds the purchased subscriptions or Sessions as set out in the Order Form, the Customer shall be liable to pay for such overage in accordance with the price list in effect at the time of the overage. In case of subscriptions, a minimum subscription period of one (1) year will be charged for each additional User. Customer acknowledges that Tacton may include in its SaaS Services functionality to track the number of active Users and to disallow use by more than the authorized Users. User licenses cannot be shared or used by more than one User. Customer is responsible for all activities that occur under Customer’s User licenses.
1.5 If applicable, fees for Session Based Subscriptions will be invoiced annually in advance except fees for Overage Sessions. Sessions paid for but not used are non-refundable. Customer may not transfer unused Sessions to the following 12-month period. When applicable, Tacton will invoice Customer for Overage Sessions annually in arrears. The fee for Overage Sessions shall be the current Subscription Fee x 150%.
TACTON CONFIDENTIAL INFORMATION
1.6 Customer Responsibilities. Customer will (i) be responsible for Users’ (including Users of its Affiliates) compliance with the MSA, this Schedule and the applicable Order Form or SOW, (i) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquires Customer Data, (iii) submit Customer Data only in accordance with the Documentation and applicable laws and government regulations, (iv) notify Tacton promptly of any unauthorized access to or use of Services and use reasonable efforts to prevent and promptly stop any unauthorized use, copying, or distribution of the SaaS Services that is known by Customer or its Users, and (v) use SaaS Services only as intended and in accordance with the Documentation, Order Forms or SOWs, and applicable laws and government regulations. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its Affiliates, and any act or omission by an Affiliate that would constitute a breach of the Agreement and this Schedule if taken by Customer will be deemed a breach of the Agreement or this Schedule by Customer. Customer shall use reasonable efforts to make all Affiliates and all Users of Customer or any Affiliate aware of the Agreement’s (and this Schedule’s) provisions as applicable to such person’s use of the SaaS Services and shall cause such persons to comply with such provisions. If Customer becomes aware of any actual or threatened activity prohibited by the Agreement or this Schedule, Customer shall, and shall cause its Affiliates and Users to, immediately: (i) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects; and (ii) notify Tacton of any such actual or threatened activity.
1.7 Usage Restrictions. Customer will not (i) make any SaaS Service available to, or use any SaaS Service for the benefit of, anyone other than Customer and its Users (and Users of its Affiliates), (ii) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau, time-share or outsourcing offering, (iii) use a SaaS Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iv) use a SaaS Service to store or transmit Malicious Code, (v) interfere with or disrupt the integrity or performance of any SaaS Service or third-party data contained therein or the ability of Tacton to provide any SaaS Service to any of its other customers, (vi) attempt to gain unauthorized access to any portion of the SaaS Service or its related systems or networks, (vii) permit direct or indirect access to or use of any SaaS Service in a way that circumvents a contractual usage limit, (viii) copy a SaaS Service or any part, feature, function or user interface thereof, (ix) access the SaaS Services in order to build a competitive product or services, (x) frame or mirror any part of any SaaS Service, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (xi) remove any proprietary notices from the SaaS Services or related Documentation, or (xii) access, copy, translate, create a derivative work of, deconstruct, reverse engineer, reverse assemble, disassemble or decompile, mirror or frame the Services or their related graphics, functions, features, software, systems or networks in a manner not expressly set forth in the MSA, this Schedule or Order Form.
1.8 Service Modifications. Tacton may, in its sole discretion, continue to develop the SaaS Services and the equipment and facilities used to provide or maintain the Services, for purposes such as the enhancement of the Services’ functionality or efficiency, to accommodate evolving technology or increased network demand, to comply with legal or regulatory requirements, or to provide upgraded or improved services.
2. Non-Tacton Application Providers
2.1 Integration with and Availability of Non-Tacton Applications. Tacton may make access to or use of Non-Tacton Applications that interoperate with the SaaS Services available to Customer. To access and use such Non- Tacton Applications, Customer must accept the applicable terms and conditions required by the providers of such Non-Tacton Applications (collectively “Separate T&Cs”). Customer’s use of any Non-Tacton Application is at Customer’s own risk, and Tacton is not responsible for and disclaims all liability with respect to any Non- Tacton Application. Tacton may cease providing such Non-Tacton Application at any time, without notice and, as Customer’s sole and exclusive remedy for such termination of the Non-Tacton Application, Tacton shall refund to Customer any prepaid but unused fees (if any) for such terminated Non-Tacton Application for the period following such termination.
TACTON CONFIDENTIAL INFORMATION
2.2 Non-Tacton Applications and Customer Data. If Customer utilizes a Non-Tacton Application for use with the SaaS Services, Customer acknowledges that (i) Customer will be subject to the applicable Separate T&Cs, (ii) Customer shall be solely responsible for evaluating the sufficiency of such Separate T&Cs, including with respect to protections offered under such Separate T&Cs with respect to access, disclosure, modification, deletion or breach of laws with respect to any data and information provided to such providers by or on behalf of Customer, (iii) Tacton does not own or control such Non-Tacton Applications, they are made available as a convenience only, and are not part of the Software Licenses or SaaS Service or subject to any of the warranties, service commitments, or other obligations under this Agreement, and (iv) Tacton may allow providers of such Non-Tacton Applications to access Customer Data as required for the interoperation and support of such Non- Tacton Applications with the SaaS Services. No provider of a Non-Tacton Application shall be considered a subcontractor or sub-data processor of Tacton or any of its Affiliates. Tacton and its Affiliates shall not be responsible for any disclosure, modification, use, processing, corruption, loss or deletion of Customer Data, or any breach of applicable data protection laws and regulations, resulting from any access to Customer Data by or through a Non-Tacton Application.
3. Additional Tacton CPQ software applications
3.1 Depending on the Tacton CPQ license and selected options, Tacton grants to Customer a non-exclusive, non-transferable, non-sublicensable, right to use additional software applications (the “Software Applications”) only in connection with the SaaS Services and only to the extent required in order to use the SaaS Services. The list of Software Applications available, depending on the Tacton CPQ license and selected options, can be found in the table below. The maximum number of users is specified in the Order Form. All rights to use the Software Applications shall terminate when the right to use the SaaS Services terminates. In addition, all rights to use the Software Applications, or individual components thereof, shall terminate when the SaaS Services includes the material functionality provided by the Software Applications or the applicable component thereof. Upon termination of the license granted under this Section 3, Customer shall uninstall or otherwise remove all Customer’s installations of the Software Applications and destroy all other documentation and materials pertaining to the Software Applications. Customer shall upon Tacton’s request confirm in writing that no materials pertaining to the Software Applications remain in its possession or that of any Affiliate or other third party under its control or under contract with it.
3.2 Ownership of all Intellectual Property Rights in the Software Applications vest exclusively in Tacton. Customer is not granted any license, right or franchise with respect to the Software Applications, or any part thereof, except as expressly stated in this Schedule. Customer may not, itself or with the assistance of third parties, examine, decompile and modify the Software Applications.
3.3 Support and maintenance of the Software Applications is provided as set out in the Documentation.
Tacton CPQ License Software Applications
| Tacton CPQ License | Software Applications |
|---|---|
| Tacton CPQ Starter | TCstudio, TCexcel Add-in |
| Tacton CPQ Enterprise | TCstudio, TCexcel Add-in |
| Tacton CPQ Enterprise Plus | TCstudio, TCexcel Add-in |