Trackforce Valiant SaaS Contract

Trackforce Valiant SaaS contract

Updated on 01 September 2022

• Terms and Conditions prior to 12 May, 2021
• Terms and Conditions prior to 1 May, 2018

This Trackforce Valiant SaaS Agreement, including all applicable schedules and agreed plans (as defined below) made hereunder (together the “Contract” or “Terms and Conditions”), is entered into between Trackforce Aquire Co, Inc. and its subsidiaries, if any, on the one hand, and the “Client” identified below on the other. Trackforce Aquire Co, Inc. and its subsidiaries shall be collectively referred to herein as “Trackforce Valiant” or “TFV”. The Agreement shall constitute a binding agreement between TFV and Customer.

Following the entry into force on 25 May 2018 of European Regulation No. 2016/679 of 27 April 2016 on the protection of personal data (hereinafter ” GDPR “), we have redefined and formalised the legal framework for the marketing of our solutions in these general terms of sale. These general terms and conditions of sale are supplemented by the “subcontracting clauses” and the “data protection policy”, which thus form an integral part thereof.

Terms and Conditions

1: Definitions

Capitalized terms used and not otherwise defined in this Agreement shall have the meaning set forth below

1.1: Active Employee

Shall mean, with respect to a given period, any employee of Customer (or any other person performing services for Customer (such as an independent contractor) who is included in, uses or accesses the Services in any way during such period.

1.2. Affiliate

Means a legal entity separate from and controlled by or under common control with the either party. For purposes of this Agreement, the term “control” shall refer to the ownership of a controlling interest.

1.3. Customer

Refers to the client entity specified in the applicable schedule/proposal, as well as any other affiliated or unaffiliated client entity for which the client has contracted TFV to provide services. In the event that Customer shall be comprised of more than one legal entity, then this Agreement shall apply to each such legal entity receiving Services.

1.4. Customer Data

Shall mean any data, information, content and materials provided by Customer to TFV in the course of using the Services.

1.5. Documentation

Shall mean all written or electronic materials provided to Customer by TFV for facilitating use of the Services, as applicable, but does not include advertising or similar promotional materials.

1.6. Equipment

Shall mean provided by TFV to Customer from time to time for use in connection with the Services. Such Equipment may be provided on a purchase, lease, rental or other basis. Equipment shall be provided, if and as applicable, by TFV pursuant to this Agreement, the terms of the applicable Schedule/Proposal(s), and the terms of such additional documents as may be provided by TFV for that purpose from time to time.

1.7. Force Majeure

Refers to events beyond the control of TFV, such as, but not limited to, acts of war, natural disasters, fires, prolonged power, electricity or network outages, acts of vandalism or pandemics, which render the services temporarily unavailable or which affect or prevent the performance of this contract.

1.8. Initial Term

Means the period as specified in the Schedule/Proposal, beginning with the Start Date, in respect of which the Customer will pay fees.

1.9. Intellectual Property Rights

Refers to all copyrights, trade secrets, patents, trademarks and other intellectual property rights or parts thereof, including, but not limited to, ideas formalised in any way, methodologies, methods of operation, processes and appearance of the SaaS services.

1.10. Network

Means the Internet, phone network, cell phone network, and other transmission methods by which the SaaS Services are delivered.

1.11. Party or Parties

Shall mean TFV or Customer, individually or collectively.

1.12. Production Environment

Refers to the environment provided as part of the SaaS services, which the customer uses for online processing.

1.13. Related Systems

Refers to computers owned or operated by the customer, web browsers, operating systems, firewalls, mail servers, LDAP servers, portals, networks, third party software, the Internet connection and any other equipment or software that connects to or affects the SaaS services.

1.14. SaaS Service or SaaS Services

Means the provision of access to and use of one or more components of the TFV software as a service platform, together with the provision of updates and upgrades, and related services including maintenance and support, all in accordance with this Agreement and the applicable Schedule(s).

SaaS Services may include the following: (i) GuardTek SaaS Services (including the GuardTek Guarding SaaS Service and the GuardTek Analytics SaaS Service), both of which are provided by Trackforce Acquire Co and its subsidiaries.

1.15. SaaS Software

Means the software of TFV that is used to provide the SaaS Services, together with all TFV modifications, customizations, updates, add-ons and interfaces (including APIs) thereof or thereto.

1.16. Schedule/Proposal

Means one or more written orders listing the Services to be delivered to the Customer hereunder that is signed by both TFV and the Customer and references this Agreement. A template for the scheme / proposal is attached as Annex A. Once agreed by the customer and TFV, a schedule/proposal may be referred to herein as a “plan”. All applicable Schedule(s) are incorporated into this Agreement by reference and shall constitute a part hereof. If any terms of a Schedule/Proposal shall conflict with terms of the Agreement, the terms of the Schedule/Proposal will prevail.

1.17. Service Level Agreement or SLA

Means the service level agreement applicable to the SaaS Services that is attached hereto as Exhibit E.

1.18. Services

Shall refer to SaaS Services provided under Schedule(s) issued under this Agreement.

1.19. Start Date

Shall mean, with respect to a given Service, the date upon which TFV (or Third-Party Provider) shall begin providing the Service to Customer, as specified on the Schedule/Proposal(s) pertaining to such Service.

2. Services Delivered

2.1. TFV shall provide to Customer the Services selected by Customer on the Schedule(s) for the Initial Term specified on the Schedule(s).

2.2. TFV shall provide access to the applicable SaaS Services to Customer via the Network as specified in the Schedules. Any use of the SaaS Services prior to the Start Date specified in the Schedule(s) shall be considered a trial period during which the SLA shall not apply. Within the Production Environment, Customer may use only the applications and extensions specified in the Schedule(s), even if other applications and extensions are made available.

2.3. TFV may periodically update the SaaS Services without notice, but makes no commitment (other than non-regression) as regards the frequency of new versions or the features, improvements or fixes that will be provided as part of the updates.

2.4. The Customer shall only provide access to SaaS to its own employees, consultants and other authorized users, as well as other affiliated or non-affiliated client entities, for which Customer has engaged TFV for the purpose of receiving services. The Customer shall not put the SaaS Services at the disposal of third parties or make them available on a service bureau, time-sharing or outsourcing basis.

2.5. TFV shall take commercially reasonable measures, consistent with those in the industry, to prevent unauthorized parties from gaining (a) physical access to the data center(s) where the SaaS Services are hosted, and (b) electronic access to the SaaS Services or Customer Data. TFV shall promptly notify Customer of any unauthorized access to any Customer Date on the SaaS Services that TFV detects.

2.6. TFV shall periodically backup the Customer Data (“Backup Services”) as specified in Exhibit E. TFV will undertake commercially reasonable steps to begin the restoration of Customer Data as specified in the SLA. TFV shall not be held responsible if Customer Data is lost or corrupted in between scheduled backups or for a reason caused by the acts or omissions of Customer. The Customer’s data shall not be used by TFV for any purpose other than to provide the services planned under this Agreement and as set out in any applicable TFV privacy policy.

2.7. In the event of a force majeure event as defined under Luxembourg law, TFV will use commercially reasonable efforts to restore the SaaS Services to an alternative infrastructure as soon as possible. Until such Force Majeure event shall have passed, the SaaS Services may be provided on a reduced use basis and may require Customer to make changes to the procedures used to access the SaaS Services. Neither party shall incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement, where such delay or failure is caused, in whole or in part, by a Force Majeure event. If a party asserts a Force Majeure event for failure to perform the party’s obligations, then the asserting party shall notify the other party of the event and take commercially reasonable steps to minimize the delay or damages caused by the Force Majeure event. However, should the force majeure event continue for more than thirty (30) days from the date of its occurrence, each party shall be entitled to terminate the contract without compensation on either side, by registered letter with acknowledgment of receipt, the termination taking effect fifteen (15) days after receipt of said Letter.

2.8. TFV shall provide the Support Services specified in the SLA. The SLA description attached as Exhibit E provides details of the service levels and items provided under each service level. Terms of the Support Plan supersede the terms in this Agreement.

2.9. If applicable, TFV will provide Equipment Support and Maintenance Services as specified in Exhibit D.

2.10 This Contract is entered into for the benefit of the customer, its subsidiaries and any other affiliated or non-affiliated customer entities, for which the customer has engaged TFV for the purpose of obtaining services. The Customer’s subsidiaries and the said entities may: (i) enter into a separate schedule/proposal for the purchase of services which shall be governed by the terms of this contract as if the reference to “Customer” herein were a reference to the subsidiary or entity concerned; or (ii) use the services in accordance with the terms hereof and the appropriate restrictions set out in the schedule/proposal agreed by the Customer. Regarding (ii) above, Customer shall retain ultimate responsibility for the acts and omissions of its affiliates and entities, whether affiliated or otherwise, with respect to the Services and this Agreement, including, but not limited to, payment obligations hereunder and the distribution of content submitted or processed on Customer’s behalf by its affiliates or such entities, including, but not limited to, Customer Data.

3. Customer Responsibilities

3.1. SaaS Software License. TFV hereby grants the Customer a limited, revocable, non-exclusive, non-transferable and non-sublicensable license to use the software comprising the SaaS Services (collectively, the “SaaS Software License”) on a SaaS basis for so long as Customer receives the SaaS Services. The Customer may only use the SaaS software for its own internal business operations and/or those of its subsidiaries and other affiliated or non-affiliated client entities, for which the customer has engaged TFV for the purpose of obtaining services. The Customer shall not, directly or indirectly, (i) change, copy, modify, reverse engineer, disassemble, or decompile the SaaS software or any other intellectual property in connection with this Contract; or (ii) sublicense the use of the SaaS software for use on a time-sharing, outsourcing or service bureau basis.

3.2. The Customer is responsible for recording its customer data in the services, and keeping the said data up to date. Customer represents and warrants to TFV that the Customer Data is free of all viruses, Trojan horses, and comparable elements which could harm the systems or software used by TFV or its subcontractors to provide the Services. The Customer agrees that it has collected and will maintain and process all Customer Data in compliance with all applicable laws, rules and regulations regarding data privacy and protection.

3.3. The Customer has sole responsibility for maintaining the integrity, confidentiality, and availability of the information on Customer equipment and therefore under the customer’s control.

3.4. The Customer is solely responsible for (a) verifying the accuracy of the information processed using the Services, (b) carrying out all normal processes and procedures inherent in the Services, such as end-of-period processing, file imports, exports and transfers, and (c) managing and configuring its related systems and ensuring their proper functioning. When using and applying the information generated by the Services, the Customer is responsible for ensuring that it complies with the applicable requirements of federal and state law. The Customer agrees that: (i) the use of the Services does not relieve the Customer of any professional obligation with respect to the preparation and review of the reports and documents, and (ii) the Customer does not expect TFV or the Services to provide any advice or guidance with respect to compliance with applicable laws or the proper tax treatment of the items reflected in such reports or documents.

3.5. Having tested and evaluated the SaaS services and SaaS software and having deemed them to meet its needs prior to entering into this agreement, the Customer takes on all responsibilities, obligations and expertise with regard to (a) the selection of services to achieve the expected results, and (b) any decision it makes on the basis of the results produced by the services. Customer understands and acknowledges that neither TFV nor any Third Party Providers (if applicable) are engaged in rendering legal, accounting, tax or other professional advice either as a service, or through the Services, and that Customer it is not relying on TFV or any Third Party Providers for any advice or guidance regarding laws and regulations. The Customer shall review all calculations made using the Services and satisfy itself those results are accurate. Should legal, accounting, tax or other expert assistance be required, the Customer seek out the services of a competent professional. To the extent permitted by law, the Customer shall indemnify and hold TFV harmless from claims and demands of its employees or former employees arising from the use by Customer of the Services.

3.6. Customer is solely responsible to ensure Related Systems operate properly. The support provisions of this Contract do not apply to the related systems or problems in the SaaS Services caused by the related systems, regardless of which party provided, installed, or distributed the related systems. Should TFV identify that a malfunction is caused, in whole or in part, by changes made by the Customer to the SaaS Services or the behavior of the related systems, it will inform the Customer and seek the Customer’s approval to provide additional support (if applicable). Should Customer give its approval, the additional time spent by TFV after such approval shall be billed to customer on a time and materials basis at the then current rates.

3.7. Customer shall change all passwords used to access the Services at regular intervals. Should the Customer learn of an unauthorized third party having obtained knowledge of a password, it shall inform TFV thereof without undue delay and promptly change the password. Customer will terminate old users in the Services.

3.8. Customer is responsible for monitoring user access to the Services.

3.9. Customer is responsible for the connection to the SaaS Service, including the Internet connection.

3.10. Should the Customer use telephone and data services (“mobile services”) in the performance of this Agreement, then the Customer shall comply with the following restrictions:

3.10.1. Customer will only use such phone and data services for use of the SaaS Services as stated in this SaaS Agreement.

3.10.2. The Customer shall not abuse or misuse the services as provided within the context of these mobile services.

3.10.3. Customer will be responsible for any and all charges that are incurred in activities unrelated to the SaaS Services.

3.10.4. The Customer shall abide by all local and country laws in the use of the Mobile Services, including refraining from the use of the Mobile Services for unsolicited advertisements, fraudulent or misleading calls, or threats.

3.10.5. The Customer is solely liable for any violation or misuse as described in this Section 3.10, and will pay any and all fines, penalties, fees, and legal costs associated with defending, settling, and resolving such violations or misuse.

3.10.6. The Customer shall notify TFV immediately of any known abuse or violation against this Section 3.10, providing all details and course of correction in order to resolve such an issue.

4. Payments, Credits, and Refunds

4.1. The Customer undertakes to pay TFV the fees set out in this Agreement, the applicable Schedule/Proposal(s), and, if applicable, TFV’s invoice(s), for the Services and Equipment provided for herein.

4.2. All initial fees for Services shall be due upon commencement of the services. All subsequent invoices shall be due Net 30 for the term of the Subscription Period as defined in each Schedule.

4.3. Customers shall pay all invoices via direct debit and electronic transfer.

4.4. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount when due and submit written notice of the disputed amount (with details of the nature of the dispute and the invoice(s) disputed) within thirty (30) days of receipt of the invoice. TFV reserves the right to charge interest at the rate of 1.5% per month or the maximum permitted by law on balances not paid on the due date, including in the event of challenge, where the latter is ultimately unfounded. The Customer shall pay all costs incurred in the collection of the charges due and payable, including reasonable attorney fees, regardless of whether a suit is instituted.

4.5. Without limiting any other right or remedy of TFV under this Contract, TFV reserves the right to suspend or terminate the Customer’s access to any Services or Equipment (or any Third Party Services, Third Party Software or Third Party Equipment) provided hereunder in the event that any amount due under this Contract, any Schedule, any Proposal or any invoice is more than thirty (30) days past due, unless its non-payment is justified by a dispute, and then only for such time as is necessary for the resolution of such dispute. Such suspension or termination shall not relieve the Customer of its obligation to pay any amount otherwise due.

4.6. TFV’s fees are exclusive of any taxes, levies or duties imposed by the tax authorities, and the Customer shall remain responsible for the payment of such taxes, levies or duties, with the exception of taxes on TFV’s net income (including related taxes and charges for communications-based systems and in particular telephony and the Internet).

4.7. Upon written notice by the Customer to TFV of its failure to satisfy the Uptime Commitment of the SLA within thirty (30) days of the end of a month, TFV shall credit Customer the fees as calculated in the SLA towards the next payment due from Customer. The credits provided to Customer shall be its sole and exclusive remedy for TFV’s failure to comply with the Uptime Commitment.

5. Term and Termination

5.1. The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue until all schedules/proposals issued hereunder have expired or been terminated.

5.2. The Schedule(s)/Proposal(s) issued under this Agreement shall (with respect to the Services identified thereon) commence upon the Start Date specified on the Schedule(s)/Proposal(s) or, if earlier, the commencement or delivery of the applicable Services, and shall continue for the Initial Term. Thereafter, the Schedules/Proposals shall be renewed (with respect to the Services identified therein) for successive one (1) year periods (each a “Renewal Term”), unless either party notifies the other in writing of its election not to renew at least sixty (60) days prior to the expiration of the Initial Term or the current Renewal Term, as applicable. The per-unit pricing during any such renewal term shall increase by 5% per year over the base prices listed in the Schedules for the relevant services in the immediately prior term.

5.3. The provisions of Sections 6, 7, and 8, and any payment obligations incurred by Customer prior to or upon termination, shall survive termination of this Agreement.

5.4. If either party commits a material breach of this Contract, and such breach is not remedied within thirty (30) days after receipt of notice (in the form provided in Section 8.4 hereof) from the non-breaching party, this Contract may be terminated by the non-breaching party upon notice also in the form provided for in Section 8.4 hereof. Notwithstanding the foregoing, if the nature of the breach requires longer than thirty (30) days to remedy, and TFV is taking commercially reasonable efforts to cure such breach at the end of the initial thirty (30) day remedy period, TFV shall have a reasonable time thereafter to continue to effectuate a cure of such breach. Upon termination in such instance, TFV shall refund the unexpired portion of any fees paid.

5.5. Upon the effective date of termination, Customer’s access to the SaaS Services will be terminated. Thirty (30) days after the effective date of termination, TFV shall have no obligation to maintain or provide any Customer SaaS Data, except as set forth on the Data Retention Policy attached hereto as Exhibit C. Upon termination of the Contract, TFV shall use commercially reasonable efforts to permanently and irrevocably remove, purge or overwrite all data still remaining on the servers used to host the SaaS Services, including, but not limited to, Customer Data, unless and to the extent applicable laws and regulations require further retention of such data or as otherwise set forth on the Data Retention Policy attached hereto as Exhibit C.

6. Proprietary Right, Non-Disclosure and Data Protection

6.1. Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not disclose, publish or use it for any purpose other than as provided in this Agreement, except to employees, contractors, legal or financial consultants and auditors of the Recipient, its affiliates and affiliated or unaffiliated client entities, for whom the Customer has called upon TFV to receive services, who need to know such information in the course of the Recipient’s performance of its rights and obligations hereunder and in the ordinary course of its business, and who are bound by terms of confidentiality no less strict than those contained herein. “Confidential Information” includes, but is not limited to, customer data, SaaS services, pricing and provisions of this Agreement, benchmarks, statistics or information on SaaS service capabilities, financial information, business plans, technology, marketing or sales plans that are disclosed to a party and any other information that is disclosed in accordance with this Agreement and that reasonably should have been understood by the receiving party to be proprietary and confidential to the disclosing party by reason of (i) the legends or other markings, (ii) the circumstances of the disclosure, or (iii) the nature of the information itself. Notwithstanding the foregoing, the Confidential Information shall not include: (i) information developed independently by the receiving party without having used the disclosing party’s Confidential Information; (ii) information lawfully received by the receiving party without restriction from another source entitled to provide such information; (iii) information received after it has become generally available to the public without breach of confidentiality obligations; or (iv) information which, at the time of its disclosure to the receiving party, was known to the receiving party without restriction. Each party shall protect such Confidential Information with reasonable care and no less care than it would exercise to protect its own Confidential Information of a like nature and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof. Notwithstanding any other provision of this Agreement, either party may disclose Confidential Information pursuant to an uncontested judicial, governmental or public authority order within the statutory time limits, or as required by law, provided that the recipient: (i) gives the disclosing party reasonable notice prior to such disclosure to allow the disclosing party a reasonable opportunity to seek a protective order or equivalent relief, or (ii) uses commercially reasonable efforts to obtain written assurances from the applicable judicial or governmental entity that it will afford the Confidential Information with confidential treatment.

6.2. Each party may disclose the existence of this Agreement and its provisions to the extent required by law, the rules of any public authority or the rules of any stock exchange or other trading system on which that party’s securities are listed, quoted and/or traded.

6.3. A breach of the obligations contained in this Article 6 may cause irreparable harm to the breached Party and, therefore, in addition to the remedies available at law or in equity, the breached Party shall have the right to seek relief in kind or an equivalent judicial order to terminate such breach. In the event of litigation to enforce or interpret this Article 6, the prevailing party shall be entitled to recover, in addition to the costs determined by the courts seized of the matter, the legal costs and expenses of any kind incurred in so doing, including reasonable attorneys’ fees, costs and expenses.

6.4. As between TFV and Customer, Customer shall own all title, rights, and interest in Customer Data.

6.5. Both parties agree to comply with all applicable privacy and data protection statutes, rules, or regulations governing the respective activities of the parties. The Customer hereby consents to the use, processing and/or disclosure of the Customer Data for the purposes described herein and to the extent such use or processing is necessary for TFV to carry out its duties and responsibilities under this Agreement or as required by law.

6.6. The Customer acknowledges and agrees that the SaaS Service and the SaaS Software embodied therein, and any modifications, customizations, updates, add-ons and interfaces (including APIs) thereof or thereto (including, without limitation, any modifications, customizations, updates, add-ons and interfaces thereof or thereto developed or made by TFV for Customer) and the documentation relating thereto, are, and shall at all times remain, the property of TFV (and, if and as applicable, any third parties which have granted TFV the right to license the same) and Customer shall have no right or interest in or to any of the foregoing other than the rights expressly granted under this Agreement.

6.7. Except for the rights expressly granted in this Agreement, each party retains its rights to its technologies, trade secrets and other intellectual property and tangible or intangible property rights. No implied licenses are granted herein.

6.8 As further outlined and supplemented by the policies in Appendix C, if and when TFV processes personal data on behalf of the Customer in the performance of its obligations under this Agreement, the Parties agree that the Customer shall be deemed to be the data controller within the meaning of the GDPR and that TFV shall be a data processor, and in such case: (a) when the Customer is located within the EEA, the parties agree that personal data may not be transferred or stored outside the EEA or the country or countries where the Customer is located except to the extent reasonably necessary to enable TFV to carry out the Services and TFV’s other obligations under this Agreement. TFV shall ensure that it is compliant with the provisions of the GDPR including, but not limited to, Articles 44 and 46 thereof, in respect of the provision of Services under this Agreement; (b) the Customer shall ensure that it is authorized to transfer the relevant Personal Data to TFV so that TFV may lawfully use, process and transfer the Personal Data hereunder on behalf of the Customer; (c) the Customer shall ensure that the relevant third parties have been informed of such use, processing and transfer, and have specifically and freely consented thereto, as required by any applicable data protection legislation (including, but not limited to, the GDPR); (d) TFV shall process the Personal Data only for the duration of the Contract and in accordance with the provisions hereof and any legal instructions reasonably given by the Customer from time to time; and (e) each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the Personal Data or its accidental loss, destruction or damage.

7. Warranties and Indemnifications

7.1. TFV shall indemnify, defend and hold harmless the Customer at its own expense from any claim by a third party that the SaaS Services infringe any intellectual property right of a third party; provided, however, that (a) the Customer notifies TFV of such a claim as soon as possible after becoming aware of it, and (b) allows TFV to defend itself with counsel of its own choosing, and (c) the Customer cooperates with TFV and/or provides TFV with such information as TFV may reasonably request for defense purposes. In no event shall Customer settle any such claim without the written consent of TFV. If the SaaS Services are found to infringe an intellectual property right by a final decision of a court of competent jurisdiction, TFV shall, at its own expense and at its option, either: (i) procure the right for Customer to continue using the infringing items, (ii) replace the infringing items with a functionally equivalent non-infringing product, (iii) modify the infringing items so that they are non-infringing, or (iv) terminate the affected Schedule and refund the unexpired portion of any fees paid. In no event shall TFV, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: (a) a modification of the SaaS Services or Documentation by anyone other than TFV, or (b) the Customer’s use of the SaaS Services or Documentation in a manner contrary to the instructions given to the Customer by TFV, or (c) the Customer’s use of the SaaS Services or Documentation after notice of the alleged or actual infringement from TFV or any appropriate authority. The provisions of Section 7.1 constitute the entire liability of TFV and sole remedy of Customer with respect to any claims or actions based in whole or in part upon infringement or violation of an Intellectual Property Right of any third party.

7.2. TFV represents and warrants: (a) it has the right to grant the rights specified herein, and (b) the SaaS Services will not contain any viruses or Trojan horses.

7.3. The Customer represents and warrants to TFV that it shall comply with all applicable local laws, rules and regulations in connection with its use of the Services and the Equipment ) including, without limitation, all applicable data privacy and export control laws, rules and regulations.

7.4. THE WARRANTIES AND REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, WHETHER ORAL OR WRITTEN, EXPRESSED OR IMPLIED. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 7, TFV SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES REGARDING THE SERVICES AND ANY OTHER MATTER WHATSOEVER. IN PARTICULAR, BUT WITHOUT LIMITATION, TFV SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY OTHER WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO TFV AGENT, CONTRACTOR OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATION TO THIS WARRANTY, UNLESS IN A SIGNED WRITING EXECUTED BY A TFV EMPLOYEE WITH ACTUAL AUTHORIZATION TO BIND TFV. TFV DOES NOT WARRANT THAT THE SAAS SERVICE OR ANY PORTION THEREOF WILL OPERATE UNINTERRUPTEDLY, WILL BE FREE OF ERROR OR THAT TFV WILL CORRECT ALL NON-MATERIAL ERRORS.

7.5. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT. THE LIMITATION OF LIABILITY SPECIFIED IN THIS PARAGRAPH APPLIES REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION, WHETHER THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, THE DAMAGES ARE FORESEEABLE, OR THE ALLEGED BREACH OR DEFAULT IS A FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM. IN NO EVENT SHALL TFV BE LIABLE FOR THE ACTS OR OMISSIONS OF ANY OTHER PERSON OR ENTITY INCLUDING, BUT NOT LIMITED TO, ANY THIRD PARTY PROVIDER.

7.6. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL TFV BE LIABLE FOR ANY DAMAGES FROM ANY CAUSE OR CLAIM WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY SERVICE OR EQUIPMENT PROVIDED HEREUNDER IN EXCESS OF THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING WHICH THE CLAIM AROSE. SUCH FEES SHALL BE LIMITED TO THE PARTICULAR SCHEDULE TO WHICH THE DEFAULT RELATES. THE LIMITATIONS SPECIFIED IN THIS SECTION 7.6 SHALL NOT APPLY TO A BREACH OF THE NON-DISCLOSURE PROVISIONS OF SECTION 6 OR THE INDEMNIFICATION PROVISIONS OF SECTIONS 7.1.

7.7 The Customer shall defend, indemnify and hold harmless TFV against any third party claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services if and to the extent that such use is in breach of this Agreement, negligent, fraudulent, or in willful default, provided that: (a) the Customer is informed of such claim as soon as possible after TFV becomes aware of it; (b) TFV reasonably co-operates with the Customer in the defense and settlement of such claim, at the Customer’s expense; and (c) the Customer retains the exclusive right to defend or resolve the claim.

8. General Provisions

8.1. The parties are independent contractors with respect to the Services and Equipment contemplated under this Agreement. Except as expressly set forth herein, neither party shall be deemed to be an employee, agent or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.

8.2. Each party may include the other party’s name or logo in a list of its clients, vendors, or service providers. Each party may make reference to the other in an initial press release, provided that any use of the other party’s trademark(s) retain proprietary notices and/or are properly attributed to their owner and also provided that any such press release will require the review and prior written consent of both parties, which shall not be unreasonably withheld, conditioned, or delayed.

8.3. In recognition of the pricing provided under this Agreement, Customer shall (subject to its reasonable right to review and approve): (a) allow TFV to include a brief description of the Services and Equipment furnished to Customer in TFV promotional materials, and (b) allow TFV to make reference to Customer in case studies, ROI analyses, white papers and related marketing materials, and (c) serve as a reference for TFV potential clients, and (d) provide interviews to the news media and provide quotes for press releases, and (e) organize mutually convenient site visits for TFV potential clients, and (f) make presentations at conferences, upon TFV reasonable request and at TFV’s cost.

8.4. Any notification required pursuant hereto shall be made in writing and sent to the other party at the addresses set forth in this Agreement, Attention: Legal Department, by certified mail, return receipt requested, or by Chronopost, DHL, Federal Express (or other delivery service deemed to maintain records of its deliveries), confirmed facsimile, or by return receipt of e-mail.

This contract, including its Appendices and Schedules, reflects the entire agreement of the parties with respect to its subject matter, and there are no promises, conditions, representations or warranties except those expressly set forth herein. This Agreement has been the subject of arm’s length negotiations and shall be construed as though drafted equally the parties. No terms, provisions or conditions of any purchase order or other document that Customer may use in connection with this Agreement shall have any effect on the rights, duties or obligations of either party. Unless expressly stated to the contrary in any Schedule, any terms or conditions specified in this Agreement shall prevail over terms and conditions in the Schedules. Silence shall not be construed as acceptance. No term or provision of this Agreement shall be deemed waived, and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to or waiver of any different or subsequent breach. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be illegal, unenforceable or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected. The headings and titles provided in this Agreement are for convenience only and shall have no meaning on the terms of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Customer may not assign this Agreement (or any related Schedule(s) without TFV’s prior written consent. Any attempted assignment contrary to the foregoing shall be void. TFV may assign this Agreement (and any applicable Schedule(s) to any affiliate of TFV or to any entity which acquires all or part of the business or assets of TFV. TFV may subcontract any of its service obligations under this Agreement to a subcontractor selected by TFV. The parties agree that reliable copies such as scanned or facsimile counterpart signatures are acceptable.

8.5. This Agreement may be modified or amended only by written instrument executed by the parties. Notwithstanding the foregoing, TFV may modify any term of this Agreement by providing not less than forty-five (45) days prior written notice to Customer (such notice to include the nature of and effective date of any such modification) to the extent reasonably necessary to conform to the requirements of any applicable law, rule or regulation. The Customer shall be deemed to have accepted and agreed to any such modification unless the Customer elects to terminate this Agreement by written notice to TFV prior to the effective date of the modification. In the event that Customer elects to terminate this Agreement prior to such effectiveness, TFV shall refund to Customer any fees paid which pertain to the portion of the term of this Agreement which is terminated.

8.6. No action resulting from an alleged breach of this contract may be brought by the customer against TFV more than one (1) year after the event giving rise to the action occurred. The Customer shall be liable for breaches attributable to its subsidiaries and client entities, whether affiliated or otherwise, for which the customer has engaged TFV for the purpose of receiving services, and to its subcontractors under this agreement.

8.7.     By express agreement, the information and data from the information system belonging to TFV or its subcontractors constitute written documents within the meaning of Articles 1322-1 and 1322-2 of the Luxembourg Civil Code, the link between these data and the party to which they relate being presumed until proven otherwise.

They are therefore evidence between the parties and are enforceable against them in the same way, under the same conditions and with the same probative force as any document that would have been written and signed on paper by the parties.

This is true, in particular, of the data and messages that the parties exchange through their e-mail addresses, the Production Environment, the SaaS Services, the SaaS Software, as well as the login and password that the customer uses to access the services.

The Customer acknowledges and expressly accepts that proof of the electronic actions of its staff, subsidiaries and affiliated or non-affiliated client entities, for which the Customer has engaged TFV for the purpose of obtaining services, shall be provided by the production of information and data from the information system of TFV or its subcontractors.

8.8.     This contract and any dispute or claim arising out of its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Luxembourg law.

However, in the event of a dispute, an amicable solution will be sought as a priority before any legal action is taken.

Therefore, the parties shall use their best efforts to ensure that this amicable settlement takes place within thirty (30) days of notification of the existence of the dispute by the first party to act.

In the absence of an amicable resolution within this thirty (30) day period, the dispute shall be brought before the Tribunal d’arrondissement de Luxembourg (Chambre commerciale), which shall have sole jurisdiction even in the event of multiple defendants or a guarantee claim.

8.9. EACH PARTY ACKNOWLEDGES THAT THE WARRANTY DISCLAIMERS, LIABILITY AND REMEDY LIMITATIONS, AND SERVICE LEVELS IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR BASES OF THIS AGREEMENT AND THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.

APPENDIX A: 

SCHEDULE/PROPOSAL DOCUMENT

TO BE EXECUTED BY BOTH PARTIES

APPENDIX B:

DATA PROTECTION

TFV will comply with industry standard practices for security risk management in the provision of the SaaS service and will carry out appropriate controls in this respect. Specific privacy and data protection policies can be found on the TFV website at:

http://legal.www.trackforce.com/.

Such policies are subject to updates and changes, without notice, by TFV.

APPENDIX C:

TRACKFORCE VALIANT DATA RETENTION POLICY

For existing TFV SaaS customers, Trackforce Valiant will typically retain customer data for a period of (i) five (5) years in the GuardTek SaaS environment.

1. Customer may request for Trackforce Valiant to backup their SaaS data prior to the purge operation, in a format and delivery method made available by Trackforce Valiant for this purpose, or a standard CSV formatted data dump which Customer may download and retain via SFTP, no more than once per year at Customer’s cost.

APPENDIX D:

 TRACKFORCE EQUIPMENT SUPPORT AND MAINTENANCE TERMS

TFV reserves the right to modify and improve the Equipment Support and Maintenance Services provided under these Equipment Support and Maintenance Terms and to adapt the services to changes in technology and to TFV’s business environment. For these purposes, TFV reserves the right to modify, improve, elaborate, remove or add to the provisions of these Equipment Support and Maintenance Terms at TFV’s sole discretion and without further notice, provided that any such improvement or adaptation shall not result in a diminution of the overall level of service provided hereunder.

1. Term If the Customer leases Equipment from TFV, TFV agrees to provide Equipment Support during and for the term of the Agreement. If the Customer purchases Equipment from TFV, TFV agrees to provide Equipment Support for 12 months.

2. Supported Equipment All Equipment leased from TFV and all Equipment purchased from TFV (for which Customer has paid a fee for support and maintenance, as discussed above) shall be considered Supported Equipment under these Equipment Support and Maintenance Terms.

3. Incident An incident is defined as a single problem requiring support affecting a TFV equipment product, and the reasonable effort required to resolve that problem. A single support incident is a problem that cannot be broken down into subordinate parts. It is possible that one Incident span multiple telephone calls and multiple emails; it is also possible for one telephone call to include multiple Incidents.

4. Support Services TFV’s support technicians shall assist in the resolution of support requests relating to the equipment in a prompt and professional manner. TFV will assist in resolving problems affecting only the supported equipment. Immediately after notification of an incident, an incident number will be issued, which incident number will remain effective and open until the cause of the incident is satisfactorily resolved, or after five (5) business days have elapsed without communication from the Customer, after which the incident number will be closed.

5. Maintenance Services Throughout the term of the contract, should a defect in materials or workmanship be identified in the supported equipment (“defective equipment”), once the defective equipment has been received and checked by TFV’s help desk, TFV will promptly dispatch to the customer equipment of the same type, of similar destination to the defective equipment (“replacement equipment”) to a site specified by the customer. The cost of shipping the Replacement Equipment shall be borne by the Customer.

6. Return of Defective Equipment Upon request, the Support Team will provide instructions for the return of defective equipment. The Customer shall properly pack the shipment when returning the defective equipment. Defective equipment must be returned to TFV before replacement equipment can be supplied.

7. Additional Products If, during the term hereof, the Customer purchases additional Equipment Products, these Equipment Support and Maintenance Terms shall be amended to include the Equipment Support and Maintenance Services for such additional Equipment Products. The fees for such additional Equipment Products shall be invoiced at the time of purchase, unless TFV and the Customer agree to extend this payment period so that the term of coverage for such additional products expires at the end of the Term.

8. Limitations (a) Support Services. The Support Services are limited to Equipment troubleshooting and Equipment configurations as needed to ensure the GuardTek SaaS software functions appropriately on the Equipment. Support Services do not cover inquiries on legal time keeping compliance and do not include in-depth product training. The Support Services extend only to the platforms and operating environments specified by TFV. TFV may not be held responsible for the integration or configuration with third party software, Equipment, or operating environments except as allowed by the Agreement and the products purchased from TFV. The Customer is entitled to an unlimited number of support Incidents during the Term of the Agreement. (b) Maintenance Services. TFV will provide maintenance on Equipment for damage caused in the normal course of business. Maintenance Services do not cover (a) damage resulting from accident, abuse, misuse, contact with liquid, fire, earthquake, other external causes, or use of the Covered Equipment outside of the intended or authorized use of the Equipment; (b) Equipment with a serial number that has been defaced, altered, removed, or modified without TFV’ written permission; (c) Equipment that has been lost or stolen; (d) cosmetic damage, including, but not limited to, scratches, dents and broken plastics or ports; (e) consumable parts such as batteries; (f) preventive maintenance; or (g) defects caused by normal wear and tear or normal aging of the Equipment.
9. Services Requests Requests for service shall be made by the Customer to TFV’s help desk at [email protected]. The Customer must cooperate and provide a reasonable amount of information about the incident to enable verification and resolution of the incident. When requesting replacement Equipment, the Customer shall provide TFV with the serial number of the defective Equipment concerned, the problem at issue, the context in which the problem was encountered, a description of the system configuration, the steps required to generate or reproduce the problem, and the address to be used by TFV to ship the replacement Equipment. Failure to provide information or to reasonably cooperate may result in failure to resolve the incident.

10. Miscellaneous The Equipment Support and Maintenance Services and these Equipment Support and Maintenance Terms are not transferable by Customer. These Equipment Support and Maintenance Terms are issued under the Agreement and are subject to the terms and conditions of the Agreement. With the exception of the Agreement, these Equipment Support and Maintenance Terms supersede all other oral or written proposals, purchase orders, prior agreements, and other communications between Customer and TFV concerning the subject matter hereof, and constitute the entire agreement between TFV and Customer regarding provision of Equipment Support and Maintenance Services. These Equipment Support and Maintenance Terms do not constitute a certification or warranty, express or implied, of any kind whatsoever. TFV’s obligations and responsibilities regarding product warranties are governed solely by the Agreement under which they are sold or licensed, not to exceed the original manufacturer’s product warranties.

 

APPENDIX E:

SERVICE LEVEL AGREEMENT

Service Area	Service Level Agreement
Uptime Commitment	Production Environments: 99.9%
Backup Services	TFV is responsible for backup and restore of data stored in the SaaS Service. Full backup: TFV shall backup all Customer Data in its entirety every seven (7) days. Differential backup: TFV shall backup all changes to Customer Data every twenty-four (24) hours. Transaction logs: TFV shall backup transaction logs every four (4) hours.
Disaster Recovery Time Objective	Except as otherwise provided herein, failover of functionality from the production environment to the disaster recovery site shall occur within four (4) hours of TFV’s declaration of such disaster, if the primary data center is still available, and twelve (12) hours in the event of a complete loss of the data center.
Disaster Recovery Point Objective	Maximum loss equivalent to four (4) hours of data stored in the production environment.

TFV shall provide the following service levels for the SaaS Services during the term of the Agreement.

 

NOTES, DEFINITIONS, AND ADDITIONAL TERMS

The following notes, definitions, and additional terms are an integral part of the Service Level Agreement.

1. Disaster

Means an event after which TFV determines the SaaS Services should be failed over to the disaster recovery site.

2. Downtime

Means the Total Minutes in the Month during which the Production Environment is not available, except for Excluded Downtime.

3. Excluded Downtime

Refers to the total number of minutes in the month attributable to:

(i) scheduled maintenance slots;

(ii) updates to the SaaS service;

(iii) content provided by third party content vendors, including third party software vendors;

(iv) unavailability resulting from factors beyond TFV’s reasonable control, such as unforeseeable events that could not have been avoided despite reasonable care, including, without limitation, a force majeure event.

4. Month

Means a calendar month.

5. Total Minutes in the Month

Measured 24 hours a day, 7 days a week for one month.

6. Scheduled Maintenance Windows

Refers to a window of time during which SaaS services may be interrupted for maintenance purposes, which window extends from (a) 3:00 a.m. Sunday to 4:00 a.m. Sunday, U.S. Eastern Time, for U.S. and Canadian data, (b) 3:00 a.m. Sunday to 4:00 a.m. Sunday, Central European Time, for European data centers (if applicable) ; (c) 3:00 a.m. Sunday to 4:00 a.m. Sunday Eastern Australia Time for Asia Pacific/Australia data centers (if applicable); (d) time for an extended maintenance window, in which case the Customer will be notified at least ten (10) business days in advance; and (e) time for a maintenance window scheduled with the Customer to perform maintenance or upgrades to the Customer’s production environment.

7. System Availability Percentage

Refers to the average percentage of total time during which the Production Environment is available to the Customer, calculated as follows:

8. Data collection terminals will continue to accept swipes during system downtime and swipes will be uploaded when the online system becomes available.
9. If the Customer elects to have any services provided by a third party, TFV shall have no liability for any defect or failure of the SaaS Services caused by such third party services, and the Customer shall not be entitled to any reduction in fees for the SaaS Services relating to the same. TFV may deny access to the SaaS Services to any third party which, in TFV’s sole discretion, poses a security or other risk to TFV’s systems, data or intellectual property.
10. Customer will notify TFV in writing at least sixty (60) days in advance of any period during which it reasonably believes that the number of active employees or maximum transaction volume of use of the SaaS Services may increase by more than 20% over the preceding thirty (30) day period and at least ninety (90) days in advance if it anticipates an increase of more than 50%. Failure to provide such notice shall relieve TFV of any obligation accruing to it hereunder as of the date on which such increase occurred.
11. The Uptime Commitment does not apply to the first thirty (30) days of use in a production environment, during which time TFV may need to tune the environment for the Customer based on its actual usage patterns.
12. The Uptime Commitment does not apply during a Force Majeure event and shall be reinstated again only after service has been fully restored at the primary facility.
13. Access to archived or backup data, if available, will be quoted to the Customer, and provided as a Global Service, and may be made available in a separate environment.

 

CREDITS IF TFV FAILS TO MEET THE UPTIME COMMITMENT

If the Customer notifies TFV in writing of TFV’s inability to meet the availability commitment within thirty (30) days of the end of a month, TFV will credit the Customer with 2% of the monthly pro-rated subscription fee for every 1% below the SLA, not to exceed 100% of the monthly pro-rated subscription fee.