STANDARD TERMS AND CONDITIONS
BRANDSYSTEMS STANDARD TERMS AND CONDITIONS – SOFTWARE AS A SERVICE AGREEMENT
This Software as a Service Agreement, including any and all related addendums, exhibits and schedules (the “Agreement”), is effective as of the date set forth in the Purchase Order (the “Effective Date”), by and between Wellcom Group Pte Ltd, located in Singapore (“BRANDSYSTEMS”) and you as a customer (the “Customer”). BRANDSYSTEMS and Customer are referred to collectively as the “Parties” and individually as a “Party” where appropriate.
Electronic Agreement: This Agreement is an electronic contract that sets out the legally binding terms of your use of the Service. BrandSystems may modify this Agreement from time to time, such modifications to be effective upon posting on BrandSystems.com. By purchasing a subscription you accept this Agreement and agree to the terms, conditions and notices contained or referenced herein.
WHEREAS, Customer wishes to engage BRANDSYSTEMS to render Services (as hereinafter defined) to Customer based on the specifications and needs of Customer and any End Users; and
WHEREAS, BRANDSYSTEMS wishes to provide its Services to Customer in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing promises and agreements contained herein, and intending to be legally bound hereby, BRANDSYSTEMS and Customer agree as follows:
Capitalized terms not otherwise defined in this Agreement shall have the following meanings:
“Confidential Information” means information, whether it is written or otherwise documented or not, regarding the business or the operations of the Parties, which is regarded as and protected as secret, and where its disclosure would tend to cause injury to the disclosing party’s competitive position.
“Documentation” means any materials related to the Services including, without limitation, user’s guides, technical guides, training materials, BRANDSYSTEMS guidelines and customer support instructions provided by BRANDSYSTEMS for use in connection with the Services.
“End Users” means the ultimate person or entity using the Services whether it is the Customer or not.
The “End User Portal” is a designated Internet website for Customer and End Users for Customer to input data and for the Customer and End Users to obtain access to the Services via Internet using supported browsers.
“Fee Schedule” means the schedule incorporated in the Purchase Order.
“Purchase Order” means the order form completed and signed by the parties.
“Service(s)” means those services provided by BrandSystems according to a “SaaS” (Software-as-a-service)-model. This model will give the customer the right to upload, download and categorize all data within the limits of given storage space.
“Service Availability; Data Protection; and Support and Maintenance” means the schedule attached hereto and incorporated herein as Schedule A.
“Service Fees” means the fees set forth in the Purchase Order.
1. Service & Payment Terms.
b. Payment Terms.
(i) Service Fees. Customer shall pay to BRANDSYSTEMS the Service Fees set forth in the Purchase Order.
(ii) Payment Terms. All payments for the Services during the Term (as defined in Section 8 herein) shall be due and payable on the Effective Date and, in the event that the Term is renewed under Section 8 herein, on the one (1) year anniversaries of the Effective Date. Customer shall be liable for and shall reimburse BRANDSYSTEMS for all reasonable costs, attorneys’ fees and expenses incurred in collecting any past due amounts under this Agreement.
(iii) Interest. If any payment is in arrears for more than fourteen (14) days after the due date for payment, then BRANDSYSTEMS may charge interest on such payment at the rate of one and one half percent (1.5%) per month from the original due date.
(iv) Confession of Judgment. Upon default of any of the payment obligations of the Customer set forth in this Agreement, to the extent authorized by law, it hereby irrevocably authorizes any attorney, Justice of the Peace, or Clerk of Court, to enter judgment by confession against it, in favor of BRANDSYSTEMS or its assigns, for the sum total of the amount in default plus all costs of collection, including without limitation, court costs and reasonable attorney fees. The Customer expressly waives any summons or other service of process, consents to immediate execution of the judgment, and expressly waives benefit of all exemption laws and presentment, demand, protest, and notice of default. The Customer also waives benefit of any other requirement necessary to hold it liable for the default.
2. Customer Responsibilities.
a. Customer shall provide BRANDSYSTEMS:
(i) Regular and reasonable access to Customer’s computer system as deemed necessary by BRANDSYSTEMS for BRANDSYSTEMS to perform its obligations under this Agreement.
(ii) With one (1) designated employee to be the Customer point of contact.
3. Documentation; Intellectual Property.
a. Documentation. Customer acknowledges and agrees that: (i) the Documentation is the property of BRANDSYSTEMS or its licensors and is protected by copyright, trademark, trade secret and other intellectual property laws; and (ii) Customer does not and shall not acquire any right, title, or interest in or to the Documentation except the limited and temporary right to use it as necessary for Customer’s use of the Service.
b. Intellectual Property. BRANDSYSTEMS retains all right, title, and interest in and to all software and methods used to render the Services. This Agreement does not grant Customer any intellectual property rights in or to the Services or any of its components. Nothing in this Agreement shall be implied or construed to offer ownership or license, whether express or implied, of the Services or require BRANDSYSTEMS to disclose any software source code, trade secrets, processes or methods of operation for any reason whatsoever including any changes, modifications or enhancements to the Services. BRANDSYSTEMS retains all rights of ownership to its Services, proprietary and intellectual property rights, trademarks, processes, hardware and software relating to the Services.
c. BRANDSYSTEMS Trademarks. “BRANDSYSTEMS®” is a registered trademark of BRANDSYSTEMS. Except as otherwise stated herein, BRANDSYSTEMS’ trademarks may not be used by Customer in connection with any good or service in any manner whatsoever without the prior written approval of BRANDSYSTEMS, which may be denied in BRANDSYSTEMS sole and absolute discretion. Customer may not remove or alter any BRANDSYSTEMS trademarks, tradenames, logos, labels, or other marks from the Services or Documentation.
d. Customer’s Trademarks. The Customer hereby grants to BRANDSYSTEMS during the Term and any additional term(s) of this Agreement a non-exclusive, non-transferable, fully paid-up, worldwide license to reproduce, distribute and display the Customer’s trademarks and logos, solely for purposes of providing the Services herein and for no other purposes.
4. Warranties & Disclaimers.
a. BRANDSYSTEMS Warranty. BRANDSYSTEMS WARRANTS ALL SERVICES BRANDSYSTEMS PROVIDES UNDER THIS AGREEMENT SHALL BE PERFORMED IN A WORKMANLIKE MANNER CONSISTENT WITH THE MEASURES BRANDSYSTEMS TAKES TO SERVICE ITS CLIENTS, AND IN NO CASE LESS THAN A REASONABLE LEVEL OF CARE.
b. Customer Warranty. CUSTOMER WARRANTS TO BRANDSYSTEMS THAT CUSTOMER SHALL FULLY COMPLY WITH ALL APPLICABLE LAWS, AND FURTHER WARRANTS AND REPRESENTS AND THAT ALL DATA, INFORMATION AND CONTENT PROVIDED BY CUSTOMER TO BRANDSYSTEMS SHALL NOT INFRINGE ON ANY THIRD PARTY RIGHTS OR VIOLATE ANY LAWS AND SHALL COMPLY AND MEET ALL GOVERNMENT REQUIREMENTS.
c. Disclaimer of Warranties. EXCEPT AS OTHERWISE INDICATED IN THIS SECTION, THE END USER PORTAL, AND ALL INFORMATION, DOCUMENTS, CONTENT, MATERIALS, AND SERVICES RENDERED BY BRANDSYSTEMS IN ACCORDANCE WITH THIS AGREEMENT ARE PROVIDED BY BRANDSYSTEMS AN “AS IS,” “WHERE IS,” “WITH ALL FAULTS,” “AS AVAILABLE” AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTY OF ANY KIND OTHER THAN THAT SET FORTH IN THIS AGREEMENT.
(i) EXCEPT AS UNLESS OTHERWISE STATED IN HEREIN, BRANDSYSTEMS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE END USER PORTAL OR THE INFORMATION, CONTENT, MATERIALS OR SERVICES RENDERED PURSUANT TO THIS AGREEMENT. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, BRANDSYSTEMS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BRANDSYSTEMS DOES NOT WARRANT THAT THE OPERATION OF THE END USER PORTAL AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
(ii) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BRANDSYSTEMS SHALL CREATE ANY ADDITIONAL WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF ITS WARRANTIES CONFERRED HEREUNDER. CUSTOMER HEREBY WAIVES ON ITS OWN BEHALF AND ON BEHALF OF THE END USER ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT CUSTOMER OR THE END USERS MAY HAVE AGAINST BRANDSYSTEMS OR ITS AFFILIATES, ATTORNEYS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, SUPPLIERS AND LICENSORS ARISING OUT OF CUSTOMERS AND THE END USERS’ USE OF THE END USER PORTAL AND SERVICES.
(iii) CUSTOMER ACKNOWLEDGES AND AGREES THAT BRANDSYSTEMS DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT (1) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA, CONTENT OR SOFTWARE, OR (2) UNAUTHORIZED USERS (E.G. HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER AND THE END USERS’ DATA, WEB SITES, COMPUTERS, OR NETWORKS. BRANDSYSTEMS SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. CUSTOMER AND THE END USERS ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF ITS OWN DATA AND SYSTEMS.
5. Limitation of Liabilities.
a. Limitation of Liability. Except as provided herein, BRANDSYSTEMS shall not be liable for damages of any kind arising from the use of the End User Portal, including any direct, consequential, special, incidental, punitive, indirect, exemplary, or any other damages, including damages for personal injury, lost profits, loss of data, business interruption, or revenues, arising out of Customer’s or the End Users’ use or inability to use the Services whether such damages arise in contract, tort, negligence or otherwise.
b. No Substitute Services. In no event shall BRANDSYSTEMS or its affiliates, shareholders, directors, officers, employees, and licensors be liable to Customer, the End Users or any third party for any costs associated Customer’s procuring substitute services or data.
c. BRANDSYSTEMS’ entire liability for all damages of any kind shall be limited to the Service Fees paid by Customer in the three (3) calendar months prior to the damages arising. If certain Services are provided to Customer or the End Users without charge, then BRANDSYSTEMS shall have no liability whatsoever. The foregoing sets a limit on the amount of damages payable and is not intended to establish liquidated damages. Customer expressly recognizes and acknowledges that such limitation of liability is an essential part of this Agreement and is an essential factor in establishing the price of BRANDSYSTEMS’ Services.
a. Customer Indemnification. Customer hereby agrees to defend, protect, hold harmless and indemnify BRANDSYSTEMS and its officers, directors, employees, attorneys, consultants and agents (collectively “BRANDSYSTEMS Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses, and disbursements of any kind or nature (including, without limitation, the reasonable fees and disbursements of counsel for BRANDSYSTEMS Indemnitees in connection with investigative, administrative or judicial proceedings) (“Claims”) which may be asserted against BRANDSYSTEMS Indemnitees by any third-party (including, but not limited to, the End Users), entity or person for Claims arising out of or relating in any way to this Agreement, the End User Portal, and the Services, or any act, event or transaction related or attendant thereto.
b. BRANDSYSTEMS’ Indemnification. BRANDSYSTEMS hereby agrees to defend, protect, hold harmless and indemnify Customer and its officers, directors, employees, attorneys, consultants and agents (collectively “Customer Indemnitees”) from and against any and all claims that BRANDSYSTEMS’ intellectual property or Services infringe on any third party intellectual property rights (“Intellectual Property Claims”). Customer shall immediately notify BRANDSYSTEMS in writing of any such Intellectual Property Claims and acknowledges that such notice is a condition precedent to the indemnification obligations of BRANDSYSTEMS in this sub-section (b).
c. Process. With respect to any claims subject to indemnification under this Section 6: (i) the indemnitees, shall have the right to select the counsel of choice and to control the defense of such claims; (ii) shall keep the indemnifying party fully informed of the status of such claims and any related proceedings at all stages thereof, and (iii) the indemnifying party shall (at its own expense) render to indemnitees other such assistance as may reasonably be required and to cooperate in good faith in order to ensure the proper and adequate defense of any such claims.
7. Confidential Information
a. The Party receiving Confidential Information (the “Recipient”), to the fullest extent permitted by law, shall not communicate, use, grant, dispose of, or give, and shall take reasonable precaution to prevent the communication, use, ceding, granting, disposal or giving of, any Confidential Information or any other information furnished to it by the Party disclosing the Confidential Information (the “Discloser”) to any third party, in any way whatsoever, without the prior written consent of the Discloser.
b. Confidential Information shall not apply to any information which: (i) was in the public domain or publicly known at the time it was communicated to the Recipient by the Discloser; (ii) entered the public domain or became publicly known after it was communicated to the Recipient by the Discloser through no fault of the Recipient; (iii) was in the Recipient’s possession free of any obligation of confidence at the time it was communicated to the Recipient by the Discloser; or, (iv) was developed by employees or agents of the Recipient independently of and without reference to any information communicated to the Recipient by the Discloser.
c. Each Party shall in all respects take reasonable measures to protect Confidential Information from inappropriate access and shall thereby observe at least the same level of care that it observes in respect of its own Confidential Information. Each Party may only disclose Confidential Information to such employees, representatives or other co-workers who necessarily need to know in order to use the Services. Each Party shall thereby first procure that the person to which Confidential Information is disclosed accepts in writing to maintain secrecy to the same extent as the Party itself.
d. The Recipient shall upon request of the Discloser immediately return all Confidential Information in Recipient’s possession. The Recipient shall also hand over or, according the Discloser’s instructions, destroy all copies, summaries, records and descriptions, which the Recipient has made from the Confidential Information it received.
8. Term & Termination
a. Term. This Agreement shall commence on the Effective Date and shall continue in full force and effect for the subscription period set forth in the Purchase Order (the “Term”). This Agreement shall automatically renew for a new subscription period upon the end of the Term unless either Party provides no less seven (7) days prior written notice of termination for monthly subscriptions, and no less than ninety (90) days prior written notice of termination to the other Party for yearly or longer subscription periods.
(ii) Survival. Sections 1(b)(vi), 3, 6, 7, and 9(g) shall survive the termination or expiration of this Agreement.
b. Independent Contractors. The Parties are independent contractors and will so represent themselves in all regards. Neither Party is the agent of the other nor may either Party bind the other in any way.
c. Waiver. The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
d. Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, acts of God or governmental action.
e. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without BRANDSYSTEMS’ express written consent, which consent may be refused in BRANDSYSTEMS’ sole discretion.
f. Choice of Law & Jurisdiction. This Agreement shall be governed solely by the internal laws of the State of Illinois, without reference to its conflicts of law provisions. In the event that either Party files a lawsuit relating to or arising from this Agreement, the Parties agree to exclusive jurisdiction in the federal and state courts located in Chicago, Illinois.
g. Severability. If for any reason any provision of this Agreement if found invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
h. Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the matter contained herein. There are no promises, covenants or undertakings other than those expressly set forth herein. This Agreement may not be amended except by writing signed by authorized representatives of Customer and BRANDSYSTEMS.
i. No Oral Representations. No Customer or BRANDSYSTEMS’ employee or representative has the authority to bind either Party to any oral representation or warranty.
SCHEDULE A Availability; Data Protection; Support & Maintenance
1.1 BrandSystems shall provide the SAAS Service(s) 24 hours per day, 365 days per year, with a 99% uptime.
1.2 BrandSystems is entitled to temporarily shut down the Service(s) for technical, maintenance, operational or security reasons. To the extent possible such shut down shall take place at such time as to minimize negative consequences for the Customer.
1.3 Details of planned shut downs shall be communicated to Customer, stating time and duration of such shut downs and to the extent possible, be communicated to Customer at least one week in advance. The shutdown period can be maximum one (1) day at a time.
1.4 BrandSystems shall take adequate measures to prevent unauthorized access to the Service in order to protect the Customer’s material stored on the server.
2.1 BrandSystems shall back-up the Customer’s Database material stored within the Service(s) with daily incremental backup and full weekly backup, which is stored on long term basis (3 years). In the event that the Customer’s data is lost, BrandSystems will restore the backup data to the extent possible. The Customer acknowledges that data submitted to the Service(s) between back-ups cannot be restored in the event of loss of such data. In no event shall BrandSystems be responsible for such loss of data. Backups are performed according the following schedule: · Daily incremental backup which is stored 7 days · Full weekly database backup which is stored 3 years · All uploaded files/asset will be synced to the backup storage on a daily basis.
3.1 BrandSystems shall, unless otherwise agreed, provide Level 3 product support for the hereafter named the “Support Service”, as described below. The Support Service is available 24/7 for certified administrators and authorized service personnel via e-mail: firstname.lastname@example.org.
3.2 The Support Service covers: · User helpdesk regarding system functionality. · Bug fixes and upgrades. · Monitoring of the Software as a Service.
3.3 The Support Service does not cover: Insertion and tagging of new content/images/documents. Insertion or changing of structure and navigation. Design of new customer configuration. Adding access right of users to software modules. Configuration
4. MAINTENANCE RELEASES AND NEW RELEASES
4.1 BrandSystems will update the Service(s) with all Maintenance Releases and New Versions as they become available.
4.2 BrandSystems shall test each Maintenance Release and New Version properly in accordance with BrandSystems quality management system prior to update.
1.4 BrandSystems shall take adequate measures to prevent unauthorized access to the Service in order to protect the Customer’s material stored on the server.
1. THE CUSTOMER’S UNDERTAKINGS
1.1 The Customer shall ensure that the data stored within the Service(s) does not infringe any third party’s right, including but not limited to copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy; does not violate any applicable law, statute, rule or regulation; is not violent, obscene, indecent nor contains pornography; and is not defamatory, trade libelous, threatening or harassing.
1.2 The Customer shall not use BrandSystems’ system resources in any manner that disrupts normal use of the Service(s) for other Customers. Furthermore the Customer shall not try to gain unauthorized access to data stored in BrandSystems’ system.
2. LIABILITY FOR TRANSMITTED INFORMATION
2.1 BrandSystems assumes no liability for any data loss or damage during the transmission. Furthermore, BrandSystems is not liable for the non-availability of the data due to transmission problems.
3. MONITORING OF STORED DATA
3.1 For the purpose of resolving errors/bugs and to give support, BrandSystems has the right but not the obligation to monitor and review data stored by the Customer using the Service(s). BrandSystems has the right, but no obligation, to monitor any activity associated with the Service(s) and may investigate suspect conduct and remove material that is unlawful.
4. SUBMISSIONS TO AND USE OF THE SERVICE(S)
4.1 The Customer’s submission of data and utilization of the Service(s) may be subject to international, national and local laws and restrictions. The Customer agrees to comply with all applicable laws and regulations regarding such submission and utilization, including e.g. regarding transmission of materials. To the extent the Service(s) or otherwise the co-operation between the parties hereunder involve processing of personal data, BrandSystems shall comply with the reasonable instructions of the Customer for such processing of personal data. If applicable and unless otherwise has been agreed or is obvious given the circumstances, the Customer shall be the controller of the personal data and shall, in this capacity, be responsible for ensuring that the processing of personal data is carried out according to the requirements set out in applicable legislation.
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