Version 1.0 – October 2022
Based on the Master Service Agreement for SaaS-Services (hereinafter “MSA“) between Yonder Ltd. (hereinafter “Provider” or individually “Party” and together with the Customer “Parties“) and the end-user client (hereinafter “Customer” or individually “Party” and together with the Provider “Parties“) the Customer agrees to be bound, without reservation, to the following Yonder SaaS Terms and Conditions (hereinafter “STC”).
The MSA, these STC and the annexes mentioned therein are all an integral part of the agreement between the Provider and the Customer (hereinafter “Agreement“). By signing the MSA, the Parties agree to be bound by these STC.
1. Services
1.1. General
1.1.1.
The Provider has developed a software solution as further described in the MSA (hereinafter the “Software“) and operates a software-as-a-service solution (hereinafter the “Product“) as described in the MSA and in connection therewith provides to the Customer certain Software-as-a-Service services (hereinafter “SaaS-Services“) as specified in the MSA and in these STC.
1.1.2.
As part of its SaaS-Services, the Provider:
a) Provides the Product and the SaaS-Services as set out in the MSA;
b) operates the Product and provides the support services according to the Service Level Agreements (hereinafter “SLA“) as set out in the MSA (hereinafter the “Support Services“);
c) grants the Customer access to the Software in its latest version to use the Product and to receive the Support Services.
1.1.3.
For this purpose, the Provider stores the Software on a server that is accessible to the Customer via Internet.
1.1.4.
The SaaS-Services are subject to these STC and to the timely payment of the fees set forth in MSA (hereinafter the “Fees“) by the Customer.
1.2. Support Services and Upgrades
1.2.1.
During the Term (as defined below in Section 10 of these STC) the Provider continuously monitors the functionality of the Software and eliminates all Software errors as far as technically possible and therefore provide the Support Services to the Customer as set out in the SLA.
1.2.2.
The Provider may sub-contract the provision of any of the SaaS-Services including Support Services at its own free discretion without requiring the consent of the Customer.
2. Customer Rights and Obligations
2.1. Use of Services by Customer
2.1.1.
Subject to the Customer’s compliance with the Agreement and to the Customer paying the Fees, the Provider grants to the Customer a worldwide, non-exclusive, non-transferable and limited licence to use the Product for the purposes specified in the MSA (hereinafter the “Permitted Purpose of Use“) during the Term of the Agreement.
2.1.2.
The use of the Product by the Customer shall be subject to the following licensing provisions:
a) the Customer may only use the number of licenses as agreed in the MSA;
b) the Customer may only use the Product for the Permitted Purpose of Use;
c) the Customer must not and agrees not to:
(i) copy or reproduce the Product or any part of it other than in accordance with the licence granted in the MSA and/or these STC;
(ii) sell, sub-license, resell, rent, lease, loan, supply, distribute, redistribute, publish or re-publish the Product or any part of it;
(iii) modify, alter, adapt, translate or edit, or create derivative works of the Product or any part of it;
(iv) reverse engineer, decompile, disassemble the Product or any part of it (except as mandated by applicable law);
(v) use the Product other than in accordance with the Provider’s instructions;
(vi) use the Product in any way that is unlawful, illegal, fraudulent or harmful or use it in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;
(vii) use the Product in any way that causes, or may cause, damage to the Product or impairment of the availability or accessibility of it, or any of the areas of, or services on, the Product; or
(viii) circumvent or remove or attempt to circumvent or remove the technological measures applied to the Product for the purposes of preventing unauthorised use.
d) the Product may only be used by the employees, agents and sub-contractors of the Customer subject to the Yonder SaaS End User License Agreement (EULA);
e) the Customer must not and agrees not to sub-license its right to access and use the Product or allow any unauthorised person to access or use the Product.
2.1.3.
For the avoidance of doubt, the Customer has no right to directly or indirectly access the source code of the Product, either during or after the Term.
2.1.4.
The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Product using the Customer’s account.
2.1.5.
It is the Customer’s responsibility to ensure and comply with internal policies, union contracts as well as legal requirements of the respective countries regarding the privacy protection of individual employees.
2.1.6.
The Customer agrees to ensure that access to the Product is strictly restricted to persons authorised to use it.
2.2. Duty to cooperate
2.2.1.
It is the Customers sole responsibility to provide the IT systems required to process data with the Product.
2.2.2.
The Customer will ensure that all instructions in relation to the Agreement and Customer’s use of the SaaS-Service will be given by a duly authorized representative of the Customer to the Provider representative as notified to the Customer by the Provider in the MSA.
2.2.3.
The Provider:
a) may treat all such instructions as the fully authorised instructions of the Customer; and
b) will not comply with any other instructions in relation to the Agreement without first obtaining the consent of a Customer representative.
3. Fees
3.1.
The Customer agrees to pay the Fees as set forth in the MSA.
3.2.
The Customer agrees to the payment conditions as set forth in the MSA.
3.3.
If the Customer does not timely pay any amount properly due to the Provider, the Provider may charge the Customer interest on the overdue amount at the rate of 5% per year from time to time (which interest will accrue daily and be compounded quarterly) and is entitled to immediately terminate this Agreement (in addition to the termination rights as set forth in Section 11 of these STC).
3.4.
The Provider may suspend access to the Product and the provision of the SaaS-Services if any amounts due to be paid by the Customer to the Provider are overdue by more than thirty (30) days. In the case of a suspension of the SaaS-Service, the Customer remains fully obligated to pay the Fees and the Customer is not entitled to claim any refunds or damages.
4. Intellectual Property
All intellectual property rights pertaining to the Software, the Product and the SaaS-Services and the Product shall, as between the Parties, be the exclusive property of the Provider.
5. Data Ownership and Responsibility
5.1.
The Customer is the owner of the data and contents it uses via the Product. It is the sole responsibility of the Customer to make sure that the data used is of sound quality and suitable for the results desired by the Customer.
5.2.
The Customer acknowledges that any data models and algorithms generated by the Provider based on the use of the SaaS-Service by the Customer and on Customer data are the sole property of the Provider to be used by the Provider at its free discretion for any purposes.
6. Warranties
6.1.
The Customer warrants to the Provider that:
a) it has the legal right and authority to enter into and perform its obligations under the Agreement;
b) it checks its data and information for viruses or other harmful components before entering them into the Software and to use state-of-the-art virus protection programs;
c) it will use the SaaS-Services and the Product strictly in compliance with any law and the conditions set forth in the Agreement.
6.2.
The Provider warrants to the Customer that:
a) it has the legal right and authority to enter into and perform its obligations under the Agreement;
b) it is the owner of the Product and, to the Provider’s present knowledge, the Product does not infringe upon any third party patent, copyright, trademark, trade secret or other intellectual property right;
c) it will perform its obligations under the Agreement with reasonable care and skill.
6.3.
The Customer acknowledges that:
a) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Product will be wholly free from such defects, errors and bugs; and
b) complex software is never entirely free from security vulnerabilities; and subject to the other provisions of the Agreement, the Provider gives no warranty or representation that the Product will be entirely secure.
6.4.
All of the Parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in the provisions of the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be made or implied into the Agreement.
7. Limitations and exclusions of liability
7.1.
Nothing in the Agreement will:
a) limit or exclude the liability of a Party for death or personal injury resulting from negligence;
b) limit or exclude the liability of a Party for fraud or fraudulent misrepresentation by that Party;
c) limit any liability of a Party in any way that is not permitted under applicable law; or
d) exclude any liability of a Party that may not be excluded under applicable law.
7.2.
The Provider will not be liable:
a) in respect of any loss of profits, income, revenue, use, production or anticipated savings;
b) for any loss of business, contracts or commercial opportunities;
c) for any loss of or damage to goodwill or reputation;
d) in respect of any loss or corruption of any data, database or software;
e) in respect of any special, indirect or consequential loss or damage; and
f) for any losses arising out of a Force Majeure Event, a “Force Majeure Event” meaning an event, or a series of related events, that is outside the reasonable control of the Party affected (including for instance failures of or problems with the Internet or a part of the Internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, wars etc.) and which by the exercise of reasonable diligence the Party affected was unable to prevent.
8. Data protection
8.1.
The Provider and the Customer shall comply with the applicable data protection legislation in relation to the processing of personal data.
8.2.
The Customer warrants that it has the legal right to disclose all data protected by any applicable data protection legislation (hereinafter “Personal Data“) that it does in fact disclose to the Provider under or in connection with the Agreement.
8.3.
The Provider warrants that:
a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Provider on behalf of the Customer; and
b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Provider on behalf of the Customer.
9. Confidentiality and Publicity
9.1.
The Provider covenants to keep confidential and not disclose the Customer information that is marked confidential (hereinafter “Customer Confidential Information“) to any person save as expressly permitted by the Agreement. For the sake of clarity, nothing in this Section 9 shall restrict the Provider in engaging third party providers (for example third party Internet service providers) as set forth in Section 1.2.2. of these STC.
9.2.
The Customer covenants to keep confidential and not disclose any information disclosed (whether in writing, orally or otherwise) by the Provider to the Customer (hereinafter “Provider Confidential Information“) save as expressly permitted by the Agreement.
9.3.
Confidential information of a Party may be disclosed by the other Party to that other Party’s officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the confidential information disclosed.
9.4.
The obligations set out in this Section 9 shall not apply to:
a) confidential information that is publicly known (other than through a breach of an obligation of confidence);
b) Customer Confidential Information that is in possession of the Provider prior to disclosure by the Customer, and Provider Confidential Information that is in possession of the Customer prior to disclosure by the Provider;
c) Customer Confidential Information that is received by the Provider, and Provider Confidential Information that is received by the Customer, from an independent third party who has a right to disclose the relevant confidential information; or
d) confidential information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body, provided that the Party subject to such disclosure requirement must where permitted by law give to the other Party prompt written notice of the disclosure requirement.
9.5.
Neither Party will make any public disclosure relating to the conditions of the Agreement (including press releases, public announcements and marketing materials) without the prior written consent of the other Party. Notwithstanding the aforesaid, the Provider shall be entitled to identify and name the Customer in any public disclosure for Customer reference purposes.
10. Term and Termination
10.1.
The Agreement is entered into for the fixed term specified in the MSA (hereinafter and heretofore the “Term“).
10.2.
In case of a renewal term each Party can terminate the Agreement as set forth in the MSA.
10.3.
Either Party may terminate the Agreement immediately by giving written notice to the other Party if the other Party:
a) commits any breach of any term of the Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other Party fails to remedy the breach within thirty (30) days of receipt of a written notice requiring it to do so; or
(iii) persistently breaches the terms of the Agreement (irrespective of whether such breaches collectively constitute a material breach).
b) the other Party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) an order is made for the winding up of the other Party, or the other Party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other Party under the Agreement).
11. Effects of termination
11.1.
Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Sections 4, 5, 9 and 11.2 of these STC).
11.2.
Termination of the Agreement will not affect either Party’s accrued liabilities and rights as at the date of termination.
11.3.
All property belonging to the Provider shall be returned. The Provider has to return to the Customer all data in its possession belonging to the Customer.
11.4.
Upon termination of the Agreement, the Provider will completely delete all data stored by the Customer on its servers.
12. Force Majeure Event
12.1.
Where a Force Majeure Event gives rise to a failure or delay in either Party performing its obligations under the Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.
12.2.
Neither Party shall be liable for any delay or non-performance under this Agreement caused by any event beyond its reasonable control provided that the Party affected gives prompt notice in writing to the other Party of such Force Majeure Event and uses all reasonable endeavours to continue to perform its obligations under this Agreement.
12.3.
A Party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will:
a) immediately notify the other Party; and
b) will inform the other Party of the period for which it is estimated that such failure or delay will continue.
12.4.
If the Force Majeure Event continues for at least sixty (60) days, the Party not subject to the Force Majeure Event may terminate this Agreement by notice in writing to the other.
12.5.
The affected Party will take reasonable steps to mitigate the effects of the Force Majeure Event.
13. Miscellaneous
13.1.
The Provider may change the format or nature of the Product at any time. The Provider shall use commercially reasonable endeavours to notify the Customer of material functional changes to the Product, in writing, including by email. If any such change deters the functionality of the Product, the Customer may terminate this Agreement as set out in Section 10 of these STC.
13.2.
The Customer shall ensure that its use of the Product complies with all applicable laws, rules and regulations, including, but not limited to any data protection regulations.
13.3.
No breach of any provision of the Agreement will be waived except with the express written consent of the Party not in breach.
13.4.
Unless specifically provided otherwise, any notice required or permitted to be given by either Party under this Agreement shall be in writing whereby the Parties agree to accept electronic signatures generated using DocuSign or any equivalent program as original signatures.
13.5.
If a provision of the MSA or these STC is determined by any court or other competent authority to be unlawful, invalid and/or unenforceable, the other provision of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the Parties, in which case the entirety of the relevant provision will be deemed to be deleted). The Parties commit themselves to substitute the ineffective provision with one that most closely reflects the economic intention of the ineffective provision. The same applies to unintentional gaps in the Agreement.
13.6.
Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the Parties.
13.7.
This Agreement may not be varied except by a written document signed by or on behalf of each of the Parties, whereby the Parties agree to accept electronic signatures generated using DocuSign or any equivalent program as original signatures.
13.8.
The Customer may not assign any or all of its contractual rights and/or obligation without the prior written consent of the Provider.
13.9.
The Customer hereby agrees that the Provider may freely assign any or all of its contractual rights and/or obligations under the Agreement to any affiliate or any successor to all or a substantial part of the business of the Provider from time to time.
13.10.
Each Party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that Party’s power, which are necessary to enable the Parties to exercise their rights and fulfil their obligations under the Agreement.
13.11.
This Agreement is made for the benefit of the Parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the Parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
13.12.
This Agreement constitutes the entire agreement between the Parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the Parties in respect of the subject matter.
13.13.
This Agreement will be governed by and construed in accordance with the substantive laws of Switzerland excluding its conflict of law provisions and excluding the United Nations Convention on the International Sale of Goods (CISG); and the exclusive place of jurisdiction is Zürich (City), Switzerland. The Provider may choose as alternative place of jurisdiction any competent court of justice worldwide.