Software Licence and Support Agreement
- “Affiliate” shall mean, with respect to any person, any other person that controls or is controlled by or under common control with such Person; provided, that a person shall be deemed to be an Affiliate only so long as such control exists.
- “Cloud Service” means, collectively, the Deskera CRM+ and Books+ and any optionally procured modules (the “DESKERA”), that enables SMEs to scale faster with fewer tools, as procured by Customer from SF TECHNOLOGIES in the Quotation and any subsequent Quotation from time to time, including associated offline components, but excluding Third Party Applications, Support Services and Professional Services.
- “Customer Data” means all electronic data or information submitted to and stored in the Cloud Service by Users.
- “Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Cloud Service.
- “Quotation” means a SF TECHNOLOGIES estimate, renewal notification or order form in the name of and executed by Customer and accepted by SF TECHNOLOGIES which specifies the Cloud Service, and any Support Services and/or Professional Services to be provided by SF TECHNOLOGIES subject to the terms of this Agreement.
- “Professional Services” means the general consulting, and/or training services to be provided to Customer pursuant to the terms hereof, and any additional addendums or amendments thereto, as applicable.
- “Server” means each single instance of an operating system, whether physically installed on a computer or within a virtualized environment.
- “Statement of Work” or “SOW” smeans a separate document or Quotation between SF TECHNOLOGIES and Customer that details the Professional Services to be delivered by SF TECHNOLOGIES.
- “Support Services” means the supplemental, technical support services to be provided to Customer for the Cloud Service pursuant to the terms hereof and any additional addendums or amendments thereto, as applicable. Support Services may be subject to additional fees.
- “Third Party Applications” means applications, integrations, services, or implementation, customization and other consulting services related thereto, provided by a party other than SF TECHNOLOGIES, as further described in the section below entitled “Third Party Applications” that interoperate with the Cloud Service, including but not limited to those listed on WEBSITE.
- “Users” means individuals who are authorized by Customer to use the Cloud Service pursuant to this Agreement or as otherwise defined, restricted or limited in an amendment to this Agreement. Users may include but are not limited to Customer’s and Customer’s affiliates’ employees, consultants, contractors and agents.
- “URL Terms” means the terms with which Customer must comply, which are located at a URL, referenced in this Agreement and are hereby incorporated by reference.
3.1 General Restrictions.
4. TERM, FEE, PAYMENT & TAXES
5. PROPRIETARY RIGHTS
SF TECHNOLOGIES Intellectual Property Rights. All rights, title and interest in and to the Services (including without limitation all intellectual property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Services provided or developed by SF TECHNOLOGIES) and anything developed or delivered by or on behalf of SF TECHNOLOGIES under this Agreement are owned exclusively by SF TECHNOLOGIES or its licensors. Except as provided in this Agreement, the rights granted to Customer do not convey any rights in the Services, express or implied, or ownership in the Services or any intellectual property rights thereto. Customer grants SF TECHNOLOGIES a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Customer or any Users related to the operation or functionality of the Services. Any rights in the Services or SF TECHNOLOGIES’s intellectual property not expressly granted herein by SF TECHNOLOGIES are reserved by SF TECHNOLOGIES. SF TECHNOLOGIES service marks, logos and product and service names are marks of SF TECHNOLOGIES (the “SF TECHNOLOGIES Marks”). Customer agrees not to display or use the SF TECHNOLOGIES Marks in any manner without SF TECHNOLOGIES’s express prior written permission. The trademarks, logos and service marks of Third Party Application providers (“Marks”) are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.
6. TERMS OF SERVICE
Accuracy of Customer’s Contact Information. Customer shall provide accurate, current and complete information on Customer’s legal business name, address, email address and phone number, and maintain and promptly update this information if it should change.
Notice. Any notice required under this Agreement shall be provided to the other party in writing. If Customer has a legal dispute with SF TECHNOLOGIES or if Customer wishes to provide a notice under the Indemnification Section of this Agreement, or if Customer becomes subject to insolvency or other similar legal proceedings, Customer will promptly send written notice to: SF TECHNOLOGIES ADDRESS, Attention: General Counsel, Legal Department.
Users: Passwords, Access and Notification. Customer shall authorize access to and assign unique passwords and user names to its Users. Customer will be responsible for the confidentiality and use of User’s passwords and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Cloud Service or under Customer’s account. SF TECHNOLOGIES will act as though any Electronic Communications it receives under Customer’s passwords, user name, and/or account number will have been sent by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Cloud Service and shall promptly notify SF TECHNOLOGIES of any unauthorized access or use of the Cloud Service and any loss or theft or unauthorized use of any User’s password or name and/or Cloud Service account numbers.
Transmission of Data. Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Cloud Service. Customer is responsible for securing DSL, cable or another high speed Internet connection and up-to-date “browser” software in order to utilize the Cloud Service. Customer expressly consents to SF TECHNOLOGIES’s interception and storage of Electronic Communications and/or Customer Data as needed to provide the Services hereunder, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by SF TECHNOLOGIES. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Without limiting SF TECHNOLOGIES’s applicable obligations under the Security or Confidentiality Sections of this Agreement, SF TECHNOLOGIES is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by SF TECHNOLOGIES, including, but not limited to, the Internet and Customer’s local network.
Support Services. As part of the Cloud Service, SF TECHNOLOGIES will provide Customer with online resources to assist Customer in its use of the Cloud Service. SF TECHNOLOGIES also offers optional “for fee” Support Services and Professional Services.
6.8 Service Monitoring and Analyzes
SF TECHNOLOGIES continuously monitors the Cloud Service to facilitate SF TECHNOLOGIES’s operation of the Services; to help resolve Customer service requests; to detect and address threats to the functionality, security, integrity, and availability of the Services as well as any content, data, or applications in the Services; and to detect and address illegal acts or violations of the Acceptable Use Policy. SF TECHNOLOGIES monitoring tools do not collect or store any Customer Data residing in the Services, except as needed for such purposes. SF TECHNOLOGIES does not monitor, and does not address issues with, non-SF TECHNOLOGIES software provided by Customer or any of Customer’s Users that is stored in, or run on or through, the Services. Information collected by SF TECHNOLOGIES monitoring tools (excluding Customer Data) may also be used to assist in managing SF TECHNOLOGIES’s product and service portfolio, to help SF TECHNOLOGIES address deficiencies in its product and service offerings, and for license management purposes.
SF TECHNOLOGIES may (i) compile statistical and other information related to the performance, operation and use of the Services, and (ii) use data from the Services in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses (i) and (ii) are collectively referred to as “Service Analyses”). SF TECHNOLOGIES may make Service Analyses publicly available; however, Service Analyses will not incorporate Customer Data, personal information or Confidential Information in a form that could serve to identify Customer or any individual. SF TECHNOLOGIES retains all intellectual property rights in Service Analyses.
Suspension for Delinquent Account. SF TECHNOLOGIES reserves the right to suspend Customer’s access to and/or use of the Services if any payment is due but unpaid but only after SF TECHNOLOGIES has provided Customer two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice. Customer agrees that SF TECHNOLOGIES shall not be liable to Customer or other third party for any suspension pursuant to this Section.
Suspension for Ongoing Harm. SF TECHNOLOGIES may suspend Customer’s or Users’ access to, or use of, the Services if SF TECHNOLOGIES believes that (a) there is a significant threat to the functionality, security, integrity, or availability of the Services or any content, data, or applications in the Services; (b) Customer or Users are accessing or using the Services to commit an illegal act; or (c) there is a violation of the Acceptable Use Policy. When reasonably practicable and lawfully permitted, SF TECHNOLOGIES will provide Customer with advance notice of any such suspension. SF TECHNOLOGIES will use reasonable efforts to re-establish the Services promptly after SF TECHNOLOGIES determines that the issue causing the suspension has been resolved. During any suspension period, SF TECHNOLOGIES will make Customer Data (as it existed on the suspension date) available to Customer. Any suspension under this Section shall not excuse Customer from Customer’s obligation to make payments under this Agreement.
Termination for Cause. If either Customer or SF TECHNOLOGIES breaches a material term of this Agreement or any Quotation or SOW and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate (a) in the case of breach of any Quotation or SOW, the Quotation and any applicable SOW under which the breach occurred; or (b) in the case of breach of the Agreement, the Agreement and all Quotation and SOWs that have been placed under the Agreement. If SF TECHNOLOGIES terminates any orders as specified in the preceding sentence, Customer must pay within 30 days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services under such Quotation and SOWs plus related taxes and expenses. Except for non-payment of fees, the nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. Customer agrees that if it is in default under this Agreement, Customer may not use those Services ordered.
By virtue of this Agreement, the parties may disclose to each other information that is confidential (“Confidential Information”). Confidential Information shall be limited to the terms and pricing under this Agreement and Customer’s Quotation, Customer Data residing in the Cloud Service, and all information clearly identified as confidential at the time of disclosure.
A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
Each party agrees not to disclose the other party’s Confidential Information to any third party other than as set forth in the following sentence for a period of five years from the date of the disclosing party’s disclosure of the Confidential Information to the receiving party; however, SF TECHNOLOGIES will protect the confidentiality of Customer Data residing in the Cloud Service for as long as such information resides in the Cloud Service. Each party may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement, and each party may disclose the other party’s Confidential Information in any legal proceeding or to a governmental entity as required by law. SF TECHNOLOGIES will protect the confidentiality of Customer Data residing in the Services in accordance with the SF TECHNOLOGIES security practices applicable to Customer’s Quotation as described in this Agreement or such Quotation.
9. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
Each party represents that it has validly entered into this Agreement and that it has the power and authority to do so. SF TECHNOLOGIES warrants that during the Term, SF TECHNOLOGIES will perform (i) the Cloud Service using commercially reasonable care and skill in all material respects as described in the SF TECHNOLOGIES DESKERA Written Materials, and (ii) any Professional Services and Support Services in a professional manner consistent with industry standards (the warranties described by the foregoing clauses (i) and (ii), collectively, the “Services Warranty”). If the Services provided to Customer were not performed as warranted, Customer must promptly provide SF TECHNOLOGIES with a written notice that describes the deficiency in the Services (including, as applicable, the service request number notifying SF TECHNOLOGIES of the deficiency in the Services). For Professional Services, Customer must notify SF TECHNOLOGIES of any warranty deficiencies within 30 days from performance of the deficient Professional Services.
SF TECHNOLOGIES DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT SF TECHNOLOGIES WILL CORRECT ALL SERVICES ERRORS, OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. SF TECHNOLOGIES IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER DATA OR THIRD PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES.
FOR ANY BREACH OF THE SERVICES WARRANTY, CUSTOMER’S EXCLUSIVE REMEDY AND SF TECHNOLOGIES’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF SF TECHNOLOGIES CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CUSTOMER MAY END THE DEFICIENT SERVICES AND SF TECHNOLOGIES WILL REFUND TO CUSTOMER THE FEES FOR THE TERMINATED SERVICES THAT CUSTOMER PRE-PAID TO SF TECHNOLOGIES FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATIONS OF LIABILITY
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), SALES, DATA, DATA USE, GOODWILL, OR REPUTATION.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SF TECHNOLOGIES AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CUSTOMER’S QUOTATION OR SOW, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID UNDER CUSTOMER’S QUOTATION OR SOW FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
If a third party makes a claim against either Customer or SF TECHNOLOGIES (“Recipient” which may refer to Customer or SF TECHNOLOGIES depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, hardware, or material (collectively, “Material”) furnished by either Customer or SF TECHNOLOGIES (“Provider” which may refer to Customer or SF TECHNOLOGIES depending on which party provided the Material) and used by the Recipient infringes the third party’s intellectual property rights, the Provider, at the Provider’s sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
a. notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
b. gives the Provider sole control of the defense and any settlement negotiations; and
c. gives the Provider the information, authority and assistance the Provider needs to defend against or settle the claim.
If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects SF TECHNOLOGIES’s ability to meet obligations under the relevant order, then SF TECHNOLOGIES may, upon 30 days prior written notice, terminate the order. If such Material is third party technology and the terms of the third party license do not allow us to terminate the license, then SF TECHNOLOGIES may, upon 30 days prior written notice, end the Services associated with such Material and refund any unused, prepaid fees for such Services.
The Provider will not indemnify the Recipient if the Recipient (a) alters the Material or uses it outside the scope of use identified in the Provider’s user or program documentation, or (b) uses a version of the Material which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was made available to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any Material not furnished by the Provider. SF TECHNOLOGIES will not indemnify Customer to the extent that an infringement claim is based on a Third Party Application or any Material from a third party portal or other external source that is accessible or made available to Customer within or by the Services (e.g., a social media post from a third party blog or forum, a third party Web page accessed via a hyperlink, marketing data from third party data providers, etc.).
This Section 11 provides the parties’ exclusive remedy for any infringement claims or damages.
12. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the substantive and procedural laws of Singapore and each party agrees to submit to the exclusive jurisdiction of, and venue in, the courts in Singapore in any dispute arising out of or relating to this Agreement.
Export laws and regulations of Singapore and any other relevant local export laws and regulations apply to the Services. Such export laws govern use of the Services (including technical data) and any Services deliverables provided under this Agreement, and Customer and SF TECHNOLOGIES each agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer agrees that no data, information, software programs and/or materials resulting from the Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
Customer acknowledges that the Services are designed with capabilities for Customer and Customer Users to access the Services without regard to geographic location and to transfer or otherwise move Customer Data between the Services and other locations such as User workstations. Customer is solely responsible for the authorization and management of User accounts across geographic locations, as well as export control and geographic transfer of Customer Data.
14. GENERAL PROVISIONS
14.1 Entire Agreement
This Agreement incorporates by reference all URL Terms (as applicable), Exhibits and Quotation, and this Agreement, together with such referenced items, constitute the entire understanding between Customer and SF TECHNOLOGIES and are intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, emails, and/or agreements between the parties. There are no other verbal agreements, representations, warranties undertakings or other agreements between the parties.
Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Customer in connection to this Agreement be deemed to modify, alter or expand the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of SF TECHNOLOGIES to object to such terms, provisions, or conditions. In the event of any inconsistencies between the terms of a Quotation and the Agreement, the Quotation shall take precedence; however, unless expressly stated otherwise in a Quotation, the terms of the Data Processing Agreement shall take precedence over any inconsistent terms in a Quotation.
The Agreement shall not be modified, or amended, except as expressly set forth herein, or in writing and signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted, or by a properly executed Quotation or Statement of Work.
14.2 Other General Provisions
This Agreement shall inure to benefit and bind the parties hereto, their successors and assigns, but neither party may assign this Agreement without written consent of the other, except that SF TECHNOLOGIES may assign without consent to a related entity or the successor of all or substantially all of the assignor’s business or assets to which this Agreement relates. There are no third-party beneficiaries to this Agreement.
This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.
SF TECHNOLOGIES’s business partners and other third parties, including any third parties with which the Services have integrations or that are retained by Customer to provide consulting services, implementation services or applications that interact with the Services, are independent of SF TECHNOLOGIES and are not SF TECHNOLOGIES’s agents. SF TECHNOLOGIES is not liable for, bound by, or responsible for any problems with the Services or Customer Data arising due to any acts of any such business partner or third party, unless the business partner or third party is providing Services as SF TECHNOLOGIES’s subcontractor on an engagement ordered under this Agreement and, if so, then only to the same extent as SF TECHNOLOGIES would be responsible for our resources under this Agreement.
If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. A waiver of any breach under this Agreement should not constitute a waiver of any other breach or future breach.
Force Majeure. Neither party shall be liable for loss, delay, non-performance (including failure to meet the service level commitment but excluding payment obligations) to the extent resulting from any force majeure event, including, but not limited to, acts of God, strike, riot, fire, explosion, flood, earthquake, natural disaster, terrorism, act of war, civil unrest, criminal acts of third parties, failure of the Internet, governmental acts or orders or restrictions, failure of suppliers, labor stoppage or dispute (other than those involving SF TECHNOLOGIES employees), or shortage of materials, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible and any delivery date shall be extended accordingly.
Non-Impediment. Nothing in this Agreement shall be construed as precluding or limiting in any way the right of SF TECHNOLOGIES to provide consulting, development, or other services of any kind to any individual or entity (including without limitation performing services or developing materials which are similar to and/or
Upon forty-five (45) days written notice and no more than once every twelve (12) months, SF TECHNOLOGIES may audit Customer’s use of the Cloud Services to ensure Customer’s use of the Cloud Services is in compliance with the terms of the applicable Quotation and this Agreement. Any such audit shall not unreasonably interfere with Your normal business operations. Customer agrees to cooperate with SF TECHNOLOGIES’s audit and to provide reasonable assistance and access to information reasonably requested by SF TECHNOLOGIES. The performance of the audit and non-public data obtained during the audit (including findings or reports that result from the audit) shall be subject to the provisions of section 8 (Confidentiality) of this Agreement. If the audit identifies non-compliance, Customer agrees to remedy (which may include, without limitation, the payment of any fees for additional Cloud Services) such non-compliance within 30 days of written notification of that noncompliance. Customer agrees that SF TECHNOLOGIES shall not be responsible for any of Customer’s costs incurred in cooperating with the audit.
The Section headings used in this Agreement are included for reference purposes only and shall not affect the meaning or interpretation of this Agreement in any way. Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, indemnification, payment and others which by their nature are intended to survive. This Agreement may be executed in counterparts and/or by facsimile or electronic signature and if so executed shall be equally binding as an original copy of this Agreement executed in ink by both parties.