Master Software as a Service Agreement (Pay Equity module)
Last Updated: February 2024
1. DEFINITIONS AND INTERPRETATION
1.1 Capitalized terms set forth in this Master Agreement have the meaning ascribed thereto in the Definitions Appendix. Any other capitalized term not defined in the Order Form or any document referenced therein shall have the same meaning ascribed thereto in the Definitions Appendix.
1.2 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. STRUCTURE
2.1 The Master Agreement is structured so that individual Order Forms will be entered into by the Parties and such Order Forms are governed by and subject to this Master Agreement.
2.2 Each Order Form, unless otherwise agreed by the Parties, shall constitute a separate Agreement under this Master Agreement.
2.3 Client's Affiliates may enter into an Order Form for their own benefit. In such a case, a reference to Client in this Master Agreement shall be deemed a reference to the relevant Affiliate, unless the context in which the term "Client" is used in this Master Agreement suggests otherwise.
2.4 In the event of inconsistency or conflict among the documents comprising the Agreement, the following order of precedence shall apply unless otherwise provided in the applicable Order Form and to the extent of the conflict or inconsistency:
(a) with respect to the performance of Cloud Services: (1) the applicable Order Form; (2) the General Terms; (3) the Data Processing Agreement; (4) the Service Level Agreement; and (5) the Functionality Description; (b) with respect to the performance of Professional Services: (1) the applicable Order Form; (2) the General Terms and the Definitions Appendix; (3) the Data Processing Agreement; (4) the beqom Technical and Organisational Measures; and (5) the applicable Statement of Work; provided always that the terms of the Data Processing Agreement shall take precedence and govern with respect to the protection of Personal Data.
3. LICENSE
3.1 Licence Grant. beqom hereby grants to Client, its Affiliates and their respective Users a limited, non- transferable and non-exclusive license to remotely access the Platform and use the Cloud Services solely for Client’s own internal business purposes as permitted by and subject to the Agreement. There is no transfer from beqom to Client or its Affiliates of any proprietary right or interest in the Cloud Services, the Platform or the Cloud Materials. beqom and its licensors reserve all other rights.
3.2 Extent. Users will access the Platform via the Internet; Client acknowledges that beqom has no obligation to provide copies of any Software to Client as part of the Cloud Services. Client acknowledges that Users’ right to access and use the Cloud Services shall not exceed the scope and extent of the rights granted in the Agreement or the duration of the Subscription Term.
3.3 Restrictions. Client shall be responsible for the acts and omissions of its Users and Affiliates' Users as if they were the acts and omissions of Client.
3.4 Client shall not, and shall procure that its Affiliates and their respective Users do not:
(a) make the programs or materials resulting from the Cloud Services available in any manner to any third party for use in the third party’s business operations; (b) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Cloud Materials, (c) access or use the Cloud Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to the Cloud Services; (d) reproduce, distribute, download, display, post or transmit in any form or by any means part of the Cloud Services or of the Cloud Materials, except as expressly provided under this Master Agreement; (e) sublicense, license, sell, lease, rent or otherwise make the Cloud Services available to any third party other than as expressly permitted under this Master Agreement; (f) use the Cloud Services or the Cloud Materials in any way that is unlawful, illegal, fraudulent or harmful or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.5 Environments. The Platform consists of one production environment. Subject to the payment of additional fees, Client may order additional instances and/or tenants at any time.
3.6 Access Conditions. User access credentials issued to access or utilize the Cloud Services cannot be shared or used by more than one individual.
3.7 Client shall be solely responsible for authorizing access to the Platform and assigning roles, unique passwords and usernames to its Users via Client’s own identity provider system in order to permit Users to remotely access and use the Cloud Services solely for Client’s own internal business purposes as permitted by the Agreement.
3.8 Client shall be solely responsible for implementing and managing user identification and access controls to Client Data and Client’s Confidential Information on Client’s own local network and equipment, and other equipment under Client’s control (whether local or cloud-hosted equipment or mobile devices).
3.9 Client shall use commercially reasonable efforts to prevent unauthorized access to or use of the Cloud Services by its Users and shall promptly notify beqom of any unauthorized access or use of the Cloud Services it may become aware of and any loss, theft or unauthorized use of any User’s password or name and/or account numbers.
4. SUPPORT LEVELS AND AVAILABILITY
4.1 beqom shall provide operational Support Services in compliance with the Service Level Agreement set out in the Service Level Agreement.
5. CLIENT RESPONSIBILITIES
5.1 Subject to Section 8 (Confidentiality), Client grants to beqom a worldwide, revocable, royalty-free license to host, copy, transmit and display Client Data and to use Client Data for the sole purpose of and only to the extent necessary for beqom to perform the Cloud Services for the duration of the Subscription Term.
5.2 Client shall be solely responsible for:
(a) all activities conducted under its User logins and for its Users' compliance with these General Terms; (b) the security of its own information systems and of its Internet connections from its systems to the entry point of the Platform; and (c) the content of the Client Data supplied by it.
5.3 Client is solely responsible for determining the suitability of the Cloud Services for Client's business and complying with any regulations, laws, or conventions applicable to the Client Data and Client's use of the Cloud Services. Client agrees not to submit to, or store in the Cloud Services, any Personal Data unless Client has complied with its obligations under this Section 5.
6. TERM AND TERMINATION
6.1 Cloud Services Term. Cloud Services are provided for the Subscription Term unless earlier suspended or terminated in accordance with the Agreement. Upon expiry of the Initial Subscription Period, the subscription shall automatically renew for subsequent one (1) year terms (each a “Renewal Period”) unless Client provides beqom with written notice no later than ninety (90) days prior to the end of the then- current Subscription Term of its intention not to renew the Cloud Services.
6.2 Professional Services Term. Professional Services are provided for the period stated in the applicable Order Form or upon completion of the Professional Services in accordance with the Agreement unless terminated earlier by either party in accordance with the Agreement.
6.3 Termination. Either Party may terminate the applicable Agreement at any time if:
(a) the other Party breaches any of its material obligations hereunder or any Order Form and fails to cure within thirty (30) days of receipt of written notice from the non-breaching party; or (b) the other Party becomes insolvent or bankrupt or ceases substantially all of its business; or (c) by beqom for breach of Section 3 (License) upon ten (10) days’ prior written notice.
6.4 Effect of Termination. Client shall be liable for payment of all undisputed costs, fees and expenses up to the effective date of termination.
6.5 Termination by either Party under this Section 6 shall be without prejudice to such Party’s right to damages and other rights and recourse at law or otherwise.
7. FEES AND TAXES
7.1 Subscription Fees. Client shall pay to beqom the Cloud Services fees in the amount and within the time limits set forth in the applicable Agreement. Fees will be fixed for the Initial Subscription Period. Fees for Renewal Periods will be invoiced annually approximately thirty (30) days prior to the start of each subscription year, unless otherwise set forth in the Order Form. Except as set forth herein, all fees are non-cancellable and non-refundable.
7.2 Additional Payees. Client may add additional Payees during the Subscription Term by executing an additional Order Form which shall then become an integral part of the Agreement. The term of each additional Order Form shall be coterminous with the then-current term of the Agreement and all additional fees shall be prorated accordingly. beqom shall invoice Client in arrears for the additional fees within fifteen (15) days following the end of the month to which such additional fees apply.
7.3 Price Revision. Any increase of the fees for each Renewal Period shall not exceed, at a maximum, the Fees due for the immediately preceding twelve month period multiplied by:
(a) for Clients having their seat in France, the Syntec; and (b) for other Clients, the Local Consumer Price Index.
7.4 Professional Services Fees. Client shall pay to beqom the fees for Professional Services in the amount and within the time limits set forth in the applicable Agreement.
7.5 Late Payment. If Client does not pay any undisputed fees in accordance with the terms of the Agreement then, in addition to any other available remedies, beqom may suspend Client's use of the Cloud Services or the provision of Professional Services until payment is made. beqom shall provide Client with prior written notice before any such suspension. Any fees not paid when due shall accrue interest at the maximum legal rate. Purchase orders issued by Client are for Client’s administrative convenience only.
7.6 Taxes. Fees and other charges imposed under an Order Form will not include Taxes, all of which will be for Client’s account. Client is responsible for all Taxes. Client must provide to beqom any direct pay permits or valid tax-exempt certificates prior to signing an Order Form. If beqom is required to pay Taxes, Client will reimburse beqom for those amounts and related reasonable costs paid or payable by beqom attributable to those Taxes that are due by Client.
7.7 Payment. Unless otherwise set forth in an Order Form, all undisputed amounts invoiced are due and payable within thirty (30) days of the invoice date. Client shall have no right to withhold or reduce fees or set off any amount against fees owed for alleged defects in the Cloud Services or Professional Services.
8. CONFIDENTIALITY
8.1 Non-Disclosure. The Receiving Party shall:
(a) maintain all Confidential Information of the disclosing party in strict confidence, taking steps to protect the Disclosing Party’s Confidential Information substantially similar to those steps that the Receiving Party takes to protect its own similar Confidential Information, which shall not be less than a reasonable standard of care; (b) not disclose or reveal any Confidential Information of the disclosing party to any person other than its personnel, officers, directors, auditors and legal advisers whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in this Section 8; (c) not use or reproduce any Confidential Information of the disclosing party for any purpose outside the scope of the Agreement; and (d) retain any and all confidential, internal or proprietary notices or legends which appear on the original and on any reproductions.
Confidential Information of either Party disclosed prior to execution of an Agreement are subject to the protections afforded hereunder.
8.2 Exceptions. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that:
(a) is independently developed by the Receiving Party without reference to or reliance upon the Disclosing Party’s Confidential Information, or is lawfully received free of restriction from a third Party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Master Agreement by the Receiving Party; (c) at the time of disclosure, was known to the Receiving Party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions.
Notwithstanding the foregoing, any services and Cloud Materials provided by beqom prior to the execution of the Agreement are the sole property and Confidential Information of beqom and shall be governed by this Master Agreement.
8.3 Return and removal. At the end of the Subscription Term or upon the effective termination date of the Cloud Services, the Receiving Party shall (and agrees to cause its permitted recipients to):
(a) promptly cease all use of the Disclosing Party’s Confidential Information in its or its permitted recipients’ possession, custody or control; and (b) return or destroy of the Disclosing Party’s Confidential Information in the Receiving Party’s or its permitted recipients’ possession, custody or control to the Disclosing Party.
Client’s obligation to return or destroy beqom Confidential Information does not apply to the Outputs. Notwithstanding the foregoing, retrieval and deletion of Client Personal Data and other Client Data hosted on the Platform are governed by the terms of the Data Processing Agreement.
8.4 Notwithstanding the foregoing and always subject to the specific return and deletion provisions applicable to Client Personal Data set out in the Data Processing Agreement:
(a) a single copy of all written Confidential Information may be retained by the Receiving Party’s legal counsel solely for the purposes of determining its obligations hereunder; and (b) the Receiving Party shall not be obligated to return or destroy any Confidential Information that the Receiving Party is legally prohibited from returning.
8.5 Compelled Disclosure. The Receiving Party may disclose the Disclosing Party's Confidential Information to the extent required by court order or regulatory agency; provided that the Receiving Party required to make such a disclosure uses reasonable efforts to give the Disclosing Party reasonable prior notice of such required disclosure (to the extent legally permitted) and provides reasonable assistance in contesting the required disclosure, at the request and cost of the Disclosing Party; any proposed disclosure will be limited to the minimum amount of Confidential Information required to satisfy that disclosure obligation.
8.6 Survival. This Section 8 shall survive termination of the relevant Agreement for a period of five (5) years; provided that the Receiving Party’s obligations with respect to any Confidential Information that constitutes a trade secret shall survive termination for so long as such information qualifies as a trade secret under the law applicable to the Agreement.
8.7 Reference. Subject to Client prior written consent, beqom may issue press releases, show Client’s logo on its website in order to identify Client as a recipient of Cloud Services, and use Client's logo in sales presentations and marketing materials.
8.8 Statistical Information. beqom may perform Services Analyses and may use and make such Service Analyses results publicly available, provided such results do not incorporate Client Data, Personal Data and/or identify Confidential Information in a form that could serve to identify Client, any Client's Affiliate and/or any individual or include Client's company name and/or any Client Affiliate’s company name. beqom retains all Intellectual Property Rights in such Services Analyses.
8.9 Injunctive Relief. Each Party understands that the Confidential Information constitutes valuable business assets of the Disclosing Party and its disclosure may irreparably harm the Disclosing Party. In the event of breach or threatened breach of the terms of this Section 8, the Disclosing Party is entitled to seek injunctive relief and any other remedy available at law or equity.
9. WARRANTIES
9.1 Cloud Services Warranty. beqom warrants that:
(a) the Solution will, for the Subscription Term, perform in all material respects in accordance with the Functionalities Functionality Description and the Documentation; (b) such Functionalities will not be materially decreased during the Subscription Term; and (c) the Software will be free of Harmful Code.
9.2 SUBJECT TO SECTIONS 9.3 AND 9.5, CLIENT'S SOLE AND EXCLUSIVE REMEDY, AND BEQOM'S ENTIRE LIABILITY FOR BREACH OF THE LIMITED WARRANTY IN SECTION 9.1, SHALL BE CORRECTION OF THE WARRANTED NON-CONFORMITY. IF, AFTER USING REASONABLE COMMERCIAL EFFORTS, BEQOM FAILS TO CORRECT THE DEFICIENT CLOUD SERVICE TO ACHIEVE IN ALL MATERIAL RESPECTS THE FUNCTIONALITY DESCRIBED IN THE DOCUMENTATION OR THE FUNCTIONALITY DESCRIPTION WITHIN THREE MONTHS OF THE NOTIFICATION OF THE NON-CONFORMITY BY CLIENT, CLIENT SHALL BE ENTITLED TO TERMINATE THE AGREEMENT AND RECEIVE A PRO-RATA REFUND OF THE SUBSCRIPTION FEES PAID UNDER THE APPLICABLE ORDER FORM FOR ITS USE OF THE CLOUD SERVICES FOR THE TERMINATED PORTION OF THE SUBSCRIPTION TERM.
9.3 The foregoing warranty shall not apply to the extent:
(a) the Cloud Services are not being used in accordance with these General Terms; or (b) any non-conformity is caused by any third-party products, content or service (other than third party technology that may be appropriate or necessary for use with the Cloud Services or the Platform as specified in the Functionality Description or the Documentation, as applicable, being accessed through the Cloud Services that are identified as third-party products, content or service.
9.4 Professional Services Warranty. beqom warrants that:
(a) it and each of its personnel has the necessary knowledge, skills, experience, qualifications, and resources to perform the Professional Services specified in the applicable Statement of Work; and (b) the Professional Services will be performed for and delivered to Client in a diligent, workmanlike and professional manner consistent with generally accepted industry practices.
9.5 Warranty Claims. Client shall notify beqom of the alleged warranty breach in writing within thirty (30) days of Client's discovery thereof. The notice shall include a precise description of the problem and all relevant information reasonably necessary for beqom in order to rectify such breach.
9.6 THE WARRANTIES STATED IN THIS WARRANTIES SECTION ARE THE SOLE WARRANTIES AND REMEDIES FOR CLIENT AND EXCLUSIVE OBLIGATIONS OF BEQOM RELATED TO THE CLOUD SERVICES AND/OR PRFOFESSIONAL SERVICES TO BE PROVIDED TO CLIENT PURSUANT TO THESE TERMS AND ANY ORDER FORM. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. INTELLECTUAL PROPERTY
10.1 Background Intellectual Property. Nothing in this Master Agreement or any Agreement shall affect the ownership by either Party of its Pre-Existing Intellectual Property.
10.2 Client Intellectual Property. Client owns and retains all right, title, and interest in and to Client Data, Client Materials and any Output. beqom shall have the right to use Client Materials solely for the purpose of providing the Cloud Services or Professional Services to Client under the Agreement.
10.3 beqom Intellectual Property. All rights, title, and interests in and to the Cloud Services, the Cloud Materials, the Professional Services (excluding any Client Materials or Client Data) as well as any derivative works thereof, and all Intellectual Property Rights embodied therein shall be the sole and exclusive property of beqom. Except for the limited subscription rights granted herein, Client has no right, title or interest in or to the Software or any Intellectual Property Rights in the Cloud Services.
11. THIRD PARTY CLAIMS
11.1 Indemnification by beqom. beqom shall defend Client against claims brought against Client by any third party alleging that Client’s use of the Cloud Services, in accordance with the terms and conditions of the Master Agreement, constitutes a direct infringement or misappropriation of such third party’s Intellectual Property Right. beqom will pay damages finally awarded against Client (or the amount of any settlement beqom enters into) with respect to such claims, and reasonable attorney’s fees. This obligation shall not apply if the alleged infringement or misappropriation results from use of the Cloud Services by Client in conjunction with any other software or service not supplied by or approved of by beqom.
11.2 beqom may, at its sole option and expense:
(a) procure for Client the right to continue using the Cloud Services; or (b) replace or modify the Cloud Services to be non-infringing.
If beqom provides written notice to Client that the foregoing options are not reasonably available, beqom or Client may terminate the relevant Agreement and beqom shall refund to Client all prepaid fees for the remainder of the term of the Agreement after the date of termination.
11.3 Defense and Settlement. The above indemnification obligations are conditioned on:
(a) Client timely notifying beqom in writing of any such claim; (b) beqom having the right to fully control the defense of such claim; and (c) Client reasonably cooperating in the defense of such claim.
11.4 Any settlement of any claim shall be for money damages only and shall not include a financial or specific performance obligation on or admission of fault, guilt or liability by Client against beqom, provided however that beqom may settle such claim on a basis requiring beqom to substitute for the allegedly infringing Cloud Services any alternative substantially equivalent non-infringing Cloud Services. Neither Party shall undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation that is prejudicial to the other party’s rights.
11.5 THE PROVISIONS OF THIS SECTION 11 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF BEQOM AND ITS LICENSORS TO CLIENT, AND IS CLIENT'S SOLE REMEDY, WITH RESPECT TO THIRD PARTY CLAIMS COVERED HEREUNDER AND TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
12. DATA SECURITY
12.1 Certification. beqom is certified for ISO 27001. beqom shall maintain such certification for the term of the Agreement. Upon written request, beqom will provide at no cost to Client the then-current ISO certificate.
12.2 Security Measures. beqom shall:
(a) store and process Client Data strictly as necessary to carry out its obligations hereunder, and for no other purpose; (b) implement user identification and access controls designed to limit access to Client Data to Users; (c) implement and maintain the technical, organizational and administrative security measures detailed in the Technical and Organizational Measures to keep Client Data protected in accordance with the Data Processing Agreement; and (d) keep Client Data protected in accordance with the Data Processing Agreement.
12.3 Disaster Recovery. beqom shall maintain and follow a disaster recovery plan designed to maintain Client's access to the Cloud Services and to Client Data, and to prevent the unintended destruction of Client Data, which plan, unless otherwise specified herein, shall provide for no less than daily back-ups of Client Data residing on the Platform.
12.4 Monitoring. beqom shall conduct regular testing of the systems and procedures outlined in the beqom Technical and Organizational Measures. beqom shall promptly notify Client if any of the Client Data or electronic forms of Client's information is lost, becomes corrupted, is damaged or is deleted accidentally.
12.5 beqom may use tools, including but not limited to scripts, software and utilities to monitor and administer the Cloud Services and to help resolve Client’s Cloud Services requests. Such tools shall not collect, report or store any of Client Data residing in the service production environment, except as necessary to troubleshoot service requests or imminent or major security threats or incidents in the Cloud Services.
12.6 Penetration Tests. Client may no more than once a year request, and beqom shall provide at no expense to Client, the results of beqom's own penetration tests performed at least once a year by a reputable independent cyber-security services supplier. beqom’s penetration tests will be performed annually.
13. DATA PRIVACY
13.1 Compliance. Beqom and Client shall comply with the terms of the Data Processing Agreement.
13.2 Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of Client Data. beqom shall not be held liable, in any way, for the collection, use and generally for the processing of Client Data by Client.
13.3 Production Data. Client shall initiate the production data upload process by using at Client’s option either the built-in grid data import feature of the Cloud Services or the API interface to load the production data onto the Platform.
14. LIABILITY
14.1 Direct Damages. SUBJECT TO SECTIONS 14.2 (EXCEPTIONS) AND 14.4 (SUPER CAP), AND WITHOUT PREJUDICE TO SECTION 14.3 (INDIRECT DAMAGES), UNDER NO CIRCUMSTANCES AND REGARDLESS OF THE NATURE OF ANY CLAIM SHALL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES OR SUPPLIER'S LICENSORS) BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY UNDER THE AGREEMENT FOR AN AMOUNT OF DIRECT DAMAGES IN EXCESS OF THE FEES PAID FOR THE CLOUD SERVICES AND THE PROFESSIONAL SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE INCIDENT GIVING RISE TO SUCH LIABILITY.
14.2 Exceptions. THE ABOVE LIMITATION DOES NOT APPLY TO LIABILITY ARISING FROM: (A) DEATH OR PERSONAL INJURY CAUSED BY A PARTY’S NEGLIGENCE; (B) ANY BREACH OF THE PROVISIONS UNDER THE INTELLECTUAL PROPERTY AND LICENSE SECTIONS; OR (C) FRAUD, WILFUL MISCONDUCT OR FRAUDULENT MISREPRESENTATION.
14.3 Indirect Damages. SUBJECT TO SECTION 14.4, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, PERSONAL DATA, USE OR OTHER ECONOMIC ADVANTAGE), ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, NEGLIGENCE, TORT, STATUTORY DUTY OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THE AGREEMENT.
14.4 Super cap. THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ALL DAMAGES, WHETHER DIRECT, INCIDENTAL, CONSEQUENTIAL OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH (I) A SECURITY INCIDENT GIVING RISE TO A PERSONAL DATA BREACH (AS DEFINED IN THE DATA PROCESSING AGREEMENT); OR (II) THE UNAUTHORIZED USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IN BREACH OF SECTION 8 (CONFIDENTIALITY), SHALL NOT EXCEED THREE TIMES (3X) THE FEES PAID OR PAYABLE FOR THE CLOUD SERVICES AND PROFESSIONAL SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE INCIDENT THAT GAVE RISE TO LIABILITY.
14.5 THESES LIMITATIONS SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
14.6 The essential purpose of this provision is to limit the potential liability of the Parties arising from the Agreement. The Parties acknowledge that the limitations set forth in this Section 14 are integral to the amount of fees charged in connection with the performance of the Cloud Services and Professional Services and that, where beqom was to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher. The Parties further acknowledge that the liability limitations set forth in this Section 14 include any claims against employees of, Subcontractors of, or any other persons authorized by, either Party.
15. INSURANCE
15.1 beqom will, at its own expense, carry and maintain adequate insurance coverage and minimum coverage limits for its business as required by any applicable law or regulation and commensurate with its obligations under the applicable Agreement.
15.2 beqom shall maintain all insurance provided for in this Section at all times throughout the term of the Agreement and the data retrieval period set out in the Data Processing Agreement.
16. SUBCONTRACTING
16.1 Cloud Services. beqom may use Subcontractors to provide all or part of the applicable Cloud Services and/or Professional Services under the Agreement. beqom is responsible for breaches of the Agreement caused by its Subcontractors in relation thereto.
16.2 Sub-processing. Subcontractors sub-processing Client Personal Data in connection with Cloud Services are specified in the List of Subprocessors. Client may object to new subprocessors in accordance with the procedure provided under the Data Processing Agreement. Subcontractors sub-processing Client Personal Data in connection with Professional Services are specified in the Data Processing Form.
16.3 Beqom obligations and responsibilities with respect to its subprocessors are set forth in the Data Processing Agreement.
17. AUDITS
17.1 Client may audit beqom in accordance with the terms and conditions of the Data Processing Agreement.
18. MISCELLANEOUS
18.1 Relationship of the Parties. The Parties to the Agreement are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties is created by the Agreement.
18.2 Notices. Any notice, report, approval or consent required or permitted hereunder shall be in writing and will be deemed to have been given: (A) for termination or breach-related matters (i) upon receipt or refusal if delivered personally, by courier or by express service, (ii) five business days if mailed by registered or certified mail postage prepaid, or (iii) the next business day if sent by reputable overnight courier, to the respective addresses of the Parties set forth in the Preamble above; and (B) for all other matters when delivered by email.
18.3 Governing Law and Jurisdiction. Without regard to any conflict of laws principles:
(a) if Client is located in North or South America, the Agreement will be interpreted and governed in accordance with the laws of the State of Delaware, United States; or (b) if Client is located outside of North or South America, the Agreement will be interpreted and governed in accordance with:
(i) the laws of England and Wales, if Client has its seat in the United Kingdom, India, Israel or South Africa; (ii) the laws of Germany if Client has its seat in Germany; (iii) the laws of France if Client has its seat in France; and (iv) the laws of Switzerland for all other Clients.
The United Nations Convention on Contracts for the International Sales of Goods will not apply. All disputes arising out of or in relation to an Agreement shall be submitted to the exclusive jurisdiction of the competent courts of:
(c) the New Castle County in the State of Delaware when the laws of the State of Delaware apply; (d) London when the laws of England and Wales apply; (e) Frankfurt a/Main when German laws apply; (f) Paris when French laws apply; and (g) Lausanne when Swiss laws apply.
Each Party waives any right it may have to a jury trial for any claim or cause of action arising out of or in relation to the Agreement. Nothing in this Section 18.3 shall restrict a party’s right to bring an action (including any motion for injunctive relief) against the other party in the jurisdiction where the other party’s place of business is located. Governing laws and jurisdictions applicable to cross-border transfer of Personal Data are specified in the Data Processing Form.
18.4 Export. Each Party is responsible for complying with import, export and economic sanction laws and regulations that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users.
18.5 Force Majeure. Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing Party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance. Each Party shall use reasonable efforts to mitigate the effect of a force majeure event and to perform its obligations under the Agreement as soon as reasonably possible when the force majeure event ends. If such event continues for more than thirty (30) days, each Party may cancel unperformed Cloud Services and/or Professional Services upon written notice. This section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures.
18.6 Assignment. Neither Party shall, without the other Party's prior written consent, assign, delegate, pledge or otherwise transfer partially or totally the Agreement to any party; such authorization not to be unreasonably withheld. Notwithstanding the foregoing, either Party may assign one or several Agreements or any rights and/or obligations thereunder upon written notice and without consent of the other Party:
(a) subject to Section 18.7 to any successor pursuant to a merger, consolidation, sale of all or substantially all of its assets, or all or a substantial portion of the business to which the Software or the Cloud Services relates; or (b) to an Affiliate; provided the assignee agrees in writing to be bound by the obligations of the assignor contained in the relevant Agreement and, in the case of an assignment to an Affiliate, the assigning Party shall remain liable for all of the assigned obligations and liabilities;
18.7 Change of Control of Client. In the event that ownership of or control over fifty percent (50%) of the voting stock of Client is acquired directly or indirectly by any person, corporation or other business entity which is a competitor of beqom in the compensation or continuous performance management software industry (“Change of Control”), then beqom shall be entitled to terminate all the Agreements immediately upon written notice to Client. Client shall provide at least ninety (90) days’ prior written notice of any such change of control.
18.8 Divestment. If Client divests a division, company or other entity within its corporate structure (a “Divested Entity”), then the Divestiture Terms shall apply.
18.9 Modification and Waiver. The Agreement may be modified solely in writing signed by both Parties. A delay or failure to exercise or partially exercise any right under the Agreement does not operate as a waiver, nor will it preclude future exercise of that right or permit, or sanction any subsequent breach of any term or condition.
18.10 Severability. If any term or provision hereof shall be held by a court of law to be invalid, unenforceable or illegal, such holding will not invalidate or render unenforceable any other provision hereof, and the remaining provisions will not be impaired thereby.
18.11 Survival. Any provision, which requires performance after the termination or expiration of an Agreement, which by their nature are intended to survive or relate to events that may occur after the termination or expiration thereof, will survive the termination or expiration of such Agreement.
18.12 No Third-Party Beneficiary. No provisions hereunder are intended or shall be construed to confer upon or give to any person or entity other than beqom and Client any rights, remedies or other benefits.
18.13 Entire Agreement. The Agreement and any information or documents which are incorporated therein by reference, are the entire agreement between the Parties with respect to Client’s purchase of the Cloud Services or Professional Services, and supersedes and replaces any previous communications, representations or agreement, oral or written. Any different or additional terms and conditions provided by Client to beqom are considered material alterations to the Agreement, expressly rejected and will not be binding upon beqom. Any reference to additional terms stated in a purchase order or any associated ancillary document issued by Client is solely for Client’s convenience in record keeping, and no such reference or any delivery of Cloud Services or Professional Services to Client following receipt of any purchase order shall be deemed an acknowledgment of or agreement to any terms or conditions associated with any such purchase order or in any way be deemed to modify, alter, supersede or supplement the Agreement.