WEBSITE_CUSTOMER SAAS MASTER AGREEMENT - 6824
CUSTOMER SAAS AGREEMENT Version : 6.8.24
Includes: Annex A: T&C for additional services (annex 1)Annex B : T&C Data Processing
CUSTOMER SAAS AGREEMENT
This document outlines the terms and conditions under which Bubty B.V., a company with limited liability, incorporated under the laws of the Netherlands, having its offices at Spaarneplein 2, 2515 VK 's-Gravenhage, the Netherlands, and registered with the Trade Register of the Chamber of Commerce under number 78697875 ("Bubty"), and the entity agreeing to these terms upon signing an order form or quote ("Customer"). By signing the order form or quote, the Customer agrees to be bound by these terms and conditions.
Each entity entering into this agreement may be individually referred to as "Party" and collectively as "Parties". The specifics of the Customer, including full legal details and principal office address, will be as provided on the signed order form.
The Agreement governs Customer’s licensing and use of the Services (defined below). By executing an Order Form that references this Agreement or by using the Services, Customer agrees to the terms of this Agreement as of the Effective Date.
DEFINITIONS AND INTERPRETATION
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings Bubty ascribed to them as follows:
Acceptable Use Policy or “AUP” means the policy setting out showing the rules and etiquette governing Customers and User’s use of the Services, which can be found at the Site or as otherwise notified by Bubty to the Customer.
Access Credentials means the usernames, passwords and other credentials enabling access to the Hosted Services, including both access credentials for the User Interface and access credentials for the API.
Additional Services means the services to be provided by Bubty to Customer as described in an Order Form or SOW, which may include, without limitation, engineering, installation, design, customization, development, white labeling, training, consulting, analysis, or general IT services.
Additional Services Terms and Conditions means the Additional Services Terms and Conditions Annex attached to this Agreement. In case of conflict or inconsistencies between the Agreement and the Additional Services Terms and Conditions, the Additional Services Terms and Conditions will prevail. Any deviation from the Additional Services Terms and Conditions is only valid if and agreed upon by and between the Parties in writing.
Agreement means this Agreement and any Annexes and addenda hereto.
Affiliate of a Party means any corporation or other entity that such Party directly or indirectly controls, is controlled by, or is under common control with. In this context, a Party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for (i) the board of directors, or (ii) other mechanism of control for such corporation or other entity.
API means the application programming interface for the Hosted Services defined by the Bubty and made available by to the Customer.
Business Day means any weekday other than a bank or public holiday in the Netherlands.
Confidential Information means information maintained in confidence by a Party, information which is marked as such, or information whether written or oral that by its nature would be understood, by a reasonable person under the circumstances, to be confidential information of a party. For the avoidance of doubt, the specific content of this Agreement, details of the Platform, supporting documentation, the Hosted Service, any data or information transmitted by Customer through the Platform or used by Customer for or in connection with Service and the results of any performance tests will be regarded as Confidential Information.
Customer Data means all data, works and materials, uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to Bubty for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files); Customer Data may include Personal Data that is processed by Bubty on behalf of the Customer in relation to this Agreement.
Data Protection Laws means all relevant requirements of the applicable data protection legislation in the European Union.
Personal Data means personal data under any of the Data Protection Laws.
Dashboard means Customer’s portal, available on the Site.
DCC means the Dutch Commercial Code (Burgerlijk Wetboek).
Deliverable means any works or functionality created by Bubty under the Agreement, as further specified in the applicable Order Form or SOW.
DPA means the Data Processing Annex attached to this Agreement. In case of conflict or inconsistencies between the data protection related provisions of the Agreement and the Data Processing Annex, the Data Processing Annex will prevail. Any deviation from the Data Processing Annex is only valid if and agreed upon by and between the Parties in writing.
Effective Date means the earlier of the date at which (i) both Parties execute an Order Form or (ii) Customer starts using the Services.
End-user means the private individual who ultimately receives the communications sent by Customer (or its Affiliates) via the Services.
EU GDPR means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data.
Feedback means input, comments or suggestions from or on behalf of Customer or any of its Affiliates to Bubty or any Bubty Affiliate, regarding Bubty’s’ business and technology direction or the possible creation, modification, correction, improvement or enhancement of the Services. Platform or Licensed Material.
Fees means the fees payable by Customer to Bubty pursuant to this Agreement and any other agreement relating to the Services. Including without limitation: (i) Subscription Fees, charges and other payable amounts specified in an Order Form (ii) transactional charges and other payable amounts in connection with freelance payment services provided by Bubty (iii) charges and payable amounts as may be agreed in writing by the Parties from time to time (iv) and charges calculated by multiplying Bubty’s time-based charging rates by the time spent by Bubty’s personnel performing Services.
Force Majeure means an event or circumstance which occurs after the date this Agreement that (i) is beyond the reasonable control of the affected Party, (ii) the affected Party could not reasonably have provided against before entering into this Agreement, (iii) is not attributable to the affected Party, (iv) having arisen, could not reasonably have been avoided or overcome by the affected Party, (v) renders the affected Party unable to comply totally or partially with its obligations under this Agreement.
Hosted Services means all services provided by Bubty to the Customer through the Platform and as updated by Bubty from time to time.
Inappropriate Content means collectively any content that (i) is unsolicited, including without limitation, “junk mail”, “bulk email”, spam or other unsolicited material; or (ii) qualifies as spam under any applicable laws and regulations; or (iii) potentially causes the introduction of harmful computer programs or code in the Platform or End- user’s devices; or (iv) violates any legal, regulatory, self- regulatory, governmental, statutory or telecommunication network operator’s requirements or codes of practice, or applicable third party terms; or (v) is unlawful, pornographic, abusive, racist, obscene, offensive, threatening, harassing, defamatory, discriminatory, misleading or inaccurate; or (vi) is harmful or malicious content, including but not limited to hate speech, and any other material that Bubty reasonably believes degrades, intimidates, encourages violence against, or foments prejudicial action against anyone based on gender, race, disability, geographic location or other discrimination reason; or infringes the intellectual property rights of any person or entity; or (vi) is illegal in any other way.
Licensed Material means the Hosted Services, the API, the User Interface, the Solution and the User Guide.
Malicious Code means viruses, worms, time bombs, Trojan horses and any other harmful or malicious code, files, scripts, agents or programs.
Non-Bubty Applications means online applications and offline software products provided by entities or individuals other than Bubty and are clearly identified as such, and that interoperate with the Services.
Order Form means a document, or a series of documents executed by Customer in relation to a Subscription or Additional Services and Deliverables. An Order Form may also be referred to as “Statement of Work” or “SOW” or “Confirmed Proposal”. Executed Order Forms and shall be deemed incorporated into this Agreement by reference.
Platform means the platform managed by Bubty and used by Bubty to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed.
Product means Bubty’s online web based contingent workforce management system.
Services means all services and subscriptions provided by Bubty to Customer including without limitation Hosted Services, Additional Services, the API, the Dashboard, the Solution, maintenance and support services, but exclude any Non-Bubty Applications.
SLA means any Service Level Agreement executed between Bubty and the Customer to be signed by Customer.
Site means Bubty’s web domains, available at www.bubty.com.
Solution means the prepackaged and preconfigured components of the Platform designed to execute a predefined process and produce a specific result which uses the Platform and enables Customer to communicate with its clients.
Supported Web Browser means the current release from time to time of Microsoft Edge, Google Chrome or Apple Safari.
Subscription means the plan Customer elects for access to and/or use of the Hosted Services.
Subscription Fee(s) means the recurring fees Customer is charged for the Subscription.
Subscription Period means the agreed fixed period applicable to a Subscription (including all renewal periods).
User Guide means the online user guide for the Services, accessible on login, as updated from time to time by Bubty.
Users means individuals who are authorized by Customer to use the Services, for whom subscriptions to the Services have been ordered, and who have been supplied user identifications and passwords by Bubty. Users may include but are not limited to Customer’s employees, consultants, contractors and agents, and third parties with which Customers transact business.
User Interface means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services.
Any reference in this Agreement to:
a "person" includes a reference to an individual person, a private legal entity (rechtspersoon), partnership, firm or a government agency and that person's successors in title and permitted assigns and transferees; acting directly or indirectly shall include, without prejudice to the generality of that expression, references to acting alone, jointly with, or on behalf of, by means of, or by the agency of any other persons.
the words "hereof", "hereby", "hereunder" and "herein" shall, when used in this Agreement, refer to this Agreement (as a whole and not to any particular provision);
the words "written" or "in writing" includes all forms of visible reproduction in permanent form, including electronic messages.
the words "including" and "in particular" and any similar words or expressions are by way of illustration and emphasis only and do not operate to limit the generality or extent of any other words or expressions.
Annexes, Schedules and any other attachments to this Agreement shall be read as if incorporated herein and shall have the same force and effect as any other provisions of this Agreement.
words denoting the singular number only shall include the plural and vice versa, except where the context requires otherwise.
sections or annexes schedules are to be construed as a reference section in or to annexes to this Agreement, except where the context requires otherwise.
a law, provision of law or regulation includes a reference to that law, provision of law or regulation as amended or re-enacted from time to time, as well as to the law, provision of law or regulation by which it is replaced.
any party to this Agreement includes a reference to its successors and permitted assigns under this Agreement.
this Agreement (or any other document) shall be construed as a reference to Agreement (or that other document) as amended, supplemented, substituted or novated in accordance with the terms thereof at any time and from time to time
1.2 No provision of this Agreement shall be interpreted against a Party solely as a result of the fact that such Party was responsible for the drafting of such a provision.
1.5 This Agreement is drafted in the English language. In this Agreement Dutch terms and legal concepts are expressed in English terms and not in their original Dutch terms. Where indicated in italics, Dutch original terms of these English terms have been given. Terms in this Agreement refer to Dutch legal concepts only and shall be interpreted accordingly. The use of these or similar terms in any other jurisdiction shall be disregarded.
PROVISION OF SERVICES
Hosted Services. In respect of the Hosted Services Bubty shall provide, or shall ensure that the Platform will provide, to the Customer upon the Effective Date the Access Credentials necessary to enable the Customer to access and use the Hosted Services, by means of the User Interface and the API for the business purposes of the Customer.
Subscriptions. Services purchased as Subscriptions may be accessed by no more than the specified number of Users, (ii) additional User Subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
Additional Services. Customer may request Bubty to provide Additional Services (including the development of Deliverables) beyond those outlined in the Order Form. All such requests will be considered by Bubty and, if deemed fair and feasible, will be quoted on an hourly basis at a rate to be agreed in an SOW, which rate shall apply at least for a minimum period of 2 years following date of this Agreement. If Customer submits a purchase order for Additional Services, such order shall not be binding upon Bubty until formally accepted by Bubty. Upon acceptance, the Additional Services and the associated terms, including the hourly rate and any custom SOW, will be governed by the terms and conditions of this Agreement, superseding any pre-printed terms and/or conditions within such order. Once an order has been accepted, it shall be subject to the terms and conditions of this Agreement (such terms superseding all pre-printed terms and/or conditions within such order).
Additional Services Terms and Conditions. The Additional Services Terms and Conditions annexed to this Agreement apply to all Additional Services.
3. SERVICES SETUP AND OPERATION
Availability of Hosted Services. The Hosted Services shall be made available by Bubty subject to any unavailability caused by circumstances beyond Bubty ’s reasonable control, including any Force Majeure events as contemplated and any computer, communications, Internet service or hosting facility failures or delays involving hardware, software, power or other systems not within Bubty ’s possession or reasonable control, and denial of service attacks. The Services may be temporarily limited, interrupted or curtailed due to maintenance, repair, modifications, upgrades or relocation. Bubty shall attempt to notify Customer of scheduled and unscheduled network outages that are expected to last more than four (4) hours and that may affect the Services. Bubty shall be entitled to change the Services during the Term provided that Bubty will not materially reduce the capabilities provided by the Services.
Service Level Agreement. With respect to the Services the Parties will also conclude a SLA. In case of conflict or inconsistencies between service level related provisions of the Agreement and the SLA, the SLA will prevail.
White Labelling. If agreed with Customer, Bubty shall brand the Services with Customer specific branding. In any such case the Services shall, unless specifically agreed otherwise in writing, also be branded with “powered by Bubty” or such other marks and logos as the Parties mutually agree. The Services shall in all cases retain any relevant patent, copyright and/or other intellectual property notices as may be determined to be appropriate by Bubty. Customer shall provide, in softcopy/electronic format as reasonably specified by Bubty, the Customer-specific branding to be used to white-label the Services. Bubty shall provide Customer with access to the white-labeled Services to review prior to making any production versions of the white- labeled Services commercially available for use by Customer. Customer shall use commercially reasonable efforts to promptly review the white-labeled Services. The Customer-specific branding will be applied to the Services by Bubty for the fees specified in the applicable Order Form for such Additional Services. Bubty shall only use any Customer-specific branding materials provided to Bubty for the purposes of re-branding the Services as contemplated in this Section 3.3 and for the operation of the white-labeled Services. Except for the foregoing limited rights, Customer shall retain all right, title and interest in the Customer-specific branding provided to Bubty.
Acquisition of Non-Bubty Products and Services. Bubty or third parties may from time to time make available to Customer third-party products or services, including but not limited to Non-Bubty Applications and implementation, customization and other consulting services. Any acquisition by Customer of such non-Bubty products or services, and any exchange of data between Customer or its customers and any non-Bubty provider, is solely between Customer or the applicable customer, as the case may be, and the applicable non-Bubty provider. Bubty does not warrant or support non-Bubty products or services, whether or not they are designated by Bubty as “certified” or otherwise, except otherwise agreed in writing. Subject to Section 3.6, no purchase of non-Bubty products or services is required to use the Services except a supported computing device, operating system, web browser and Internet connection.
Non-Bubty Applications and Customer Data. If Customer or any of its customers installs or enables Non-Bubty Applications for use with the Services, Customer acknowledges that Bubty may allow providers of those Non-Bubty Applications to access Customer Data as required for the interoperation of such Non-Bubty Applications with the Services. Bubty shall not be responsible for any disclosure, modification or deletion of any Customer Data resulting from any such access by Non-Bubty Application providers. The Services shall allow Customers to restrict such access by restricting Customer users from installing or enabling such Non-Bubty Applications for use with the Services.
Integration with Non-Bubty Services. The Services may contain features designed to interoperate with Non-Bubty Applications. To use such features, Customer may be required to obtain access to such Non-Bubty Applications from their providers. If the provider of any such Non-Bubty Application ceases to make the Non-Bubty Application available for interoperation with the corresponding Service features on reasonable terms, Bubty may cease providing such Service features without entitling Customer to any refund, credit, or other compensation.
PRODUCT UPDATES, MAINTENANCE AND SUPPORT
Product Updates. Bubty may, in its sole discretion, make enhancements, updates or new releases of the Product available through the Hosted Services from time to time to, inter alia, enhance or improve the functionality or operation of the Product or comply with legislative requirements (‘Product Updates). Bubty will upload any Product Updates for access and use by the Customer as soon as reasonably practicable following the creation and general release of such Product Updates by Bubty. In addition, Bubty will provide Customer with a test environment for these Product Updates. This is to ensure that any customized workflows specifically developed for Customer are thoroughly tested and verified to be uninterrupted in a live/production environment. Customer acknowledges that additional downtime for the Bubty Service over and above the agreed service levels may apply in the event that Bubty is required to upload Product Updates. The Product Updates will be provided free of charge subject to all outstanding Fees having been fully paid by the Customer. Use of the Product Updates by the Customer will be subject to the same terms and conditions as use of the Product under this Agreement.
Maintenance Services. Bubty will perform such routine maintenance services as it considers necessary to ensure the proper functioning of the Hosted Services. Bubty shall give to the Customer at least 3 Business Days' prior written notice of scheduled maintenance that will, or is likely to, affect the availability of the Hosted Services. Customer acknowledges that it is solely responsible for the support and maintenance of any computer hardware and non-Bubty software operated by Customer.
Support. Bubty will provide the Users with the agreed basic technical support in relation to the Product and the Hosted Service (‘Technical Support’). The Technical Support is available to the Users by (a) emailing Bubty during Business Hours; or (b) logging enquiries through the Bubty support website. For urgent requests, Bubty will use its best endeavours to provide a response within one (1) Business Day. When reporting faults to Bubty, the Users must provide an accurate description of the problems encountered including error messages and an accurate impact of the problem in order to facilitate the necessary corrective action by Bubty.
Support of Custom Created Integrations. Bubty supports custom-created integrations on its platform, however always limited to aspects directly manageable and under the control of Bubty.
CUSTOMER OBLIGATIONS
General Restrictions. Customer shall not (and shall not authorize any third party to):
sub-license its right to access and use the Services, sell, resell, rent or lease the Services; permit any unauthorized person or application to access or use the Services or make the Services available to anyone other than Users.
modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Services except to the extent that enforcement of the foregoing restriction is prohibited by applicable law.
circumvent any User limits or other timing, use or functionality restrictions built into the Services.
remove any proprietary notices, labels, or marks from the Services (except to the extent Customer is so permitted to for the purposes of re-branding the Services).
frame or mirror any content forming part of the Services.
access the Services to build a competitive product or service, or copy any ideas, features, functions or graphics of the Services.
use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or to store or transmit Malicious Code.
interfere with or disrupt the integrity or performance of the Services or third-party data contained therein.
attempt to gain unauthorized access to the Services or their related systems or networks.
Access Security Obligations. The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorized person or application may gain access to the Hosted Services by means of the Access Credentials. The User Interface may only be used through a Supported Web Browser and may only be used by the officers, employees, agents and subcontractors of the Customer; The API may only be used by an application, or applications approved by the Bubty in writing and controlled by the Customer. Customer shall conduct regular vulnerability assessments and penetration testing to ensure its implementation of the Hosted Service is secure.
Acceptable Use Policy Obligations. The Customer must comply with Bubty’s Acceptable Use Policy, which is available on the Site, and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of the Access Credentials comply with Bubty’s Acceptable Use Policy. Customer acknowledges that Bubty reserves the right to unilaterally change or modify any of the terms and conditions of the Acceptable Use Policy. Bubty will make reasonable efforts to notify Customer of such changes, which may include posting an announcement on the website, in-application notices, or via email.
Other Obligations. Customer shall be responsible for the accuracy, quality and legality of the Customer Data and of the means by which it was acquired. Customer shall (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and shall notify Bubty promptly of any such unauthorized access or use; and (ii) comply with all applicable local, state, provincial, federal and foreign laws in respect to the Services.
Information Obligations. Customer shall provide promptly all information reasonably requested by Bubty (i) to confirm Customer’s compliance with its obligations under this Agreement, the applicable laws and regulations; or (ii) in response to any request made by any legal, regulatory, self-regulatory, governmental authority, supplier, or operator of a telecommunication network or system.
PROPRIETARY RIGHTS, LICENSE
Confirmation of Bubty Rights. Bubty has the legal right to perform its obligations under this Agreement, including all the rights in relation to the Licensed Material that are necessary to grant the rights it purports to grant under, and in accordance with, the terms of this Agreement.
License. Bubty hereby grants to Customer a worldwide personal, non- exclusive, non-transferable license during the term of this Agreement to use the Licensed Material. Customer has the right to access and use the Licensed Material subject to the terms of this Agreement. Customer will not sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Licensed Material, to any third-party. This restriction does not apply to the use of the Services by Customer’s Affiliates provided that Customer remains liable for the actions and omissions of its Affiliates in connection with the Affiliates’ use of the Services. While Bubty shall retain the exclusive right to maintain, enhance, or otherwise modify the Services, as an exception and only in rare situations where unforeseen circumstances or factors beyond Bubty's control prevent it from delivering the Services, Customer may engage an external vendor to access the portal and perform necessary services. However, the engagement of any external vendor is contingent upon prior validation and approval by Bubty, to ensure the integrity and security of the software are maintained.
Feedback. Where the Customer had no obligation to provide Bubty with Feedback, if Customer provides Bubty with Feedback Bubty shall be entitled to use the Feedback for any purpose without notice, restriction or remuneration to Customer. Where Bubty shall have no obligation to Customer in respect of the Feedback, Bubty undertakes towards Customer make a commercially reasonable effort to evaluate reasonably requested Feedback and to consider the incorporation of such Feedback into its software products and/or services. Customer will not knowingly provide Bubty with any Feedback that is subject to third party intellectual property rights.
Trademarks, Logos, Trade Names. Neither Party shall use the trademarks, logos or trade names of the other Party for any purpose without the prior written consent of the other Party
DATA
Personal Data Protection. All Personal Data shared between the Parties shall only be used for the purposes of this Agreement. Parties shall comply with the Data Protection Laws. Any compliance by Bubty with any data protection regulations other than the Data Protection Laws is only valid if separately agreed in writing. If Customer does not operate its business the European Union, it will also comply with all other applicable data protection legislation. The Parties acknowledge that Bubty is a data processor for the purpose of processing personal data on End-users when providing the Service to Customer. Customer shall ensure that it has obtained all required and valid consents under the Data Protection Laws when required for the processing of personal data by Bubty for the performance of the Service. Customer acknowledges that Bubty has the right to monitor and intercept any electronic communications sent or received by Customer under the Service for the purpose of verifying compliance under this Agreement. To the extent Bubty processes personal data on instruction of Customer, Bubty shall comply with the DPA. Customer confirms that it has read and agrees with the privacy statement of Bubty which can be found on the Site. Bubty will delete Personal Data after the end of the provision of the Services unless differently required by the applicable laws and regulations.
Customer Data. Bubty shall have the limited right to use the Customer Data solely to provide the Services in accordance with this Agreement and Customer shall obtain such rights. Subject to the limited rights granted to Bubty pursuant to this Agreement, Bubty acquires no right, title or interest from Customer under this Agreement in or to Customer Data, including any intellectual property rights therein. Bubty shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Bubty shall not (a) modify Customer Data except to the extent required to provide the Services, (b) disclose Customer Data except as compelled by law in accordance with Section 9 or as expressly permitted in writing by Customer, or (c) access Customer Data except to provide the Services and prevent or address service or technical problems, or at Customer’s request in connection with Customer support matters.
PAYMENT TERMS AND TAXES
Fees. Customer will pay the Fees and any other fees due and payable to Bubty under this Agreement in the manner specified or as otherwise invoiced to the Customer by Bubty from time to time. Except as otherwise specified in this Agreement, (i) Fees are based on User licenses purchased for the Services and not actual usage, (ii) payment obligations are non-cancelable and Fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term. Subscription Fees are based on monthly periods that begin on the subscription start date and each anniversary thereof; therefore, Fees for Subscriptions added in the middle of a period will be charged for that full period and the periods remaining in the subscription term. Unless specifically agreed otherwise in writing no revenue sharing terms exist as a form of compensation under the terms of this Agreement.
Upgrade and Downgrade of Subscription. Customer may upgrade its Subscription at any time. For downgrading the following conditions apply (a) Customer may change the Subscription upon thirty (30) days’ notice in writing to Bubty; (b) Customer may not request to downgrade to a lower-tier Subscription within 12 (12) months from the date of the signed Order Form. In the event Customer decides to upgrade its Subscription, the relevant Subscription Fee of the higher-tier Subscription shall apply pro-rata for the remainder of the term of the Services. Any changes to the Subscription Fee shall be applicable as of the date of the date of renewal of the Services.
Payment Terms. All payments under this Agreement shall be made within 30 Business Days after the receipt of the applicable invoice. All amounts are payable in United States dollars, unless otherwise agreed in writing and Bubty shall not be responsible for foreign exchange rate fluctuations. If Customer has been delinquent in its payments, Bubty may condition future subscription renewals on prepayment or payment terms shorter than those specified in this Section 8.3.
Suspension of Services and Acceleration. If any amount owing by Customer under this or any other agreement for the Services is overdue, Bubty may, without limiting Bubty ’s other rights and remedies, accelerate Customer’s unpaid Fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend provision of the Services to Customer and the Customers until such amounts are paid in full. Bubty will give Customer at least seven (7) days prior notice that its account is overdue, before suspending the Services.
Taxes. Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, goods and services, harmonized, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively: Taxes). Customer is responsible for paying all Taxes associated with its purchases pursuant to this Agreement. If Bubty has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Bubty with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Bubty is solely responsible for taxes assessable against Bubty based on its income, property and employees.
NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
The receiving Party shall use the disclosing Party’s Confidential Information only for the provision or receipt of Service and shall share this information only on a “need-to-know” basis with its employees, Affiliates and other contractors, provided that they are under a legal obligation to keep the Confidential Information confidential. The receiving Party may disclose Confidential Information in connection with a competent judicial or administrative proceeding to the extent that such disclosure is compelled by law or court, provided that the party required to disclose the Confidential Information, to the extent permitted by law, (a) gives prompt notice to the other party and (b) uses reasonable efforts to minimize such disclosure. A Party’s Confidential Information does not include information that (a) is or becomes publicly known other than through unauthorized disclosure; (b) is lawfully disclosed to the receiving Party by a third- party without restriction on disclosure; or (c) is independently developed by the receiving Party, which independent development can be shown by written evidence. Each Party shall hold all Confidential Information relating to or obtained from the other Party confidential in perpetuity. Upon any termination of this Agreement, the receiving Party will promptly return to the disclosing Party or destroy, at the disclosing Party’s option, all of the disclosing Party’s Confidential Information. Each Party acknowledges that due to the unique nature of the other Party’s Confidential Information, the disclosing Party may not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing Party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
WARRANTIES AND DISCLAIMERS
Warranties. Each Party warrants to the other Party that: (i) such Party is a business duly incorporated, validly existing, and in good standing under the laws of its jurisdiction of incorporation; (ii) such Party has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement; (iii) the execution, delivery, and performance of this Agreement constitutes the legal, valid, and binding agreement of such Party; (iv) there is no outstanding litigation, arbitrated matter or other dispute to which such Party is a party, which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on such Party’s ability to fulfill its obligations under this Agreement; and (v) no consent, approval or withholding of objection is required from any entity, including any governmental authority, with respect to such Party’s entering into this Agreement. Subject to limitations set forth in this Agreement or otherwise agreed between the Parties, Bubty warrants that (i) the Services shall perform materially in accordance with the User Guide; (ii) the functionality of the Services will not be materially decreased during a Subscription Period; and (iii) Bubty will not transmit Malicious Code to Customer provided that if Customer or a User uploads a file containing Malicious Code into the Services and later downloads that file, this warranty shall not apply to such file.
Disclaimer. Except as specifically set forth in this Section 10, the Services and the User Guide are provided “as is” and without any representations, warranties and/or conditions of any kind. Each Party and its licensors and/or suppliers make no other representations and give no other warranties or conditions, express, implied, statutory, or otherwise regarding the services and/or the User Guide provided under this Agreement and each Party specifically disclaims any and all implied representations, warranties and/or conditions of merchantability, merchantable quality, non-infringement, durability, title and fitness for a particular purpose. While Bubty does not represent or warrant that the Services and/or the User Guide will be error-free or work without interruptions, it will to the best of its ability prioritize to fix any issues that arise relating to Platform interruptions, to ensure that the Services are received properly and/or on time by the End-user.
THIRD PARTY CLAIM INDEMNITIES
Bubty IP Indemnity. Bubty will defend, indemnify and hold Customer harmless from and against any claim and related fees and expenses (including reasonable attorney’s fees) made or brought against Customer regarding the Services, as made available by Bubty under this Agreement to Customer, if the Services infringe any third-party patents, copyrights, trademarks, or other proprietary right under the laws of the Netherlands (IP Claims) and Bubty shall pay all damages finally awarded by a court of competent jurisdiction to such third party against Customer, or any settlement amounts agreed by Bubty in writing. If Bubty has reason to believe that it would be subject to an injunction or continuing damages based on the Services, then Bubty shall be entitled to either modify the Services to make it non-infringing and/or remove the misappropriated material, replace the Services or portion thereof with a service or materials that provide substantially the same functionality or information, or, if neither of the foregoing is commercially practicable, require Customer to cease reselling, receiving and/or using the Services, as the case may be, and refund to Customer (a) a pro-rata portion of any one (1) time Fees (based on a three (3) year, straight-line depreciation schedule from the date of payment), and (b) any Fees that have been pre-paid by Customer but are unused. The above defense and indemnification obligations do not apply to the extent a claim arises from or relates to (i) Customer Data (ii) End-user Data (iii) Non-Bubty Applications (iv) Customer’s or any User’s breach of this Agreement (v) any modifications of the Service by or for Customer (vi) the use of Service in combination with another product or service not provided by Bubty, or (vi) the failure to timely implement any modifications, upgrades, replacements or enhancements made available by Bubty to Customer. The foregoing is Bubty ’s sole and exclusive liability, and Customer’s sole and exclusive remedy for any infringement or misappropriation of any third-party intellectual property rights.
Customer Indemnity. Customer shall be fully responsible, shall hold Bubty fully harmless and shall fully reimburse Bubty and its Affiliates (Bubty Indemnified Parties) against any claim and related fees and expenses (including reasonable attorney’s fees, fines any sanctions imposed on Bubty) made or brought against them by any third parties (including End-users, and/or state authorities) resulting from (i) any allegation that the use of the Service by Customer results in any infringement of the rights of any third-party (including End-Users), law or regulation, and/or (ii) any content in particular, any Inappropriate Content transmitted by Customer (iii) any use of Non Bubty Applications (iv) the provision, use or failure of any product or service provided by Customer (v) any representations or warranties made by Customer in respect of the Services or any portions thereof beyond those authorized by this Agreement (Bubty Third Party Claims) and Customer shall pay all damages finally awarded by a court of competent jurisdiction to such third party against any of the Bubty Indemnified Parties, or any settlement amounts agreed by Customer in writing. Customer shall not be liable for any settlement amounts entered into by Bubty without Customer’s prior written approval.
Indemnification Procedures. The indemnifying party’s obligations are conditioned upon the indemnified party (i) giving the indemnifying party prompt written notice of the claim to the extent possible, and (ii) granting full control of the defense and settlement to the indemnifying party (provided however, the indemnified party may participate with counsel of its choosing at its own expense) and (iii) provided full reasonable assistance and cooperation in the discovery, preparation, settlement or defense of the relevant claim.
Indemnity Claim Notice. The indemnified party shall give written notice (a “Claim Notice”) to the indemnifying party of any claims and liabilities that might give rise to such claim under this Section 11, which notice shall state the nature and basis of such claim and the amount thereof, to the extent the Indemnitee knows such matters. The failure of any Indemnitee to give notice as provided herein shall not relieve the indemnifying of its obligations under this Section 11.4 except to the extent that the indemnified party is materially prejudiced thereby.
Duty to Mitigate. Any indemnified party shall act in good faith and in a commercially reasonable manner to mitigate any damages or losses they may suffer.
LIMITATION OF LIABILITY
Exclusion of Liability. Bubty shall in no way or manner be held responsible or liable to Customer, its contractual partners or End-users for (i) faults, errors or delays in the delivery, transmission, re-transmission or reception of, or parts thereof, the Services if this is not covered under the SLA; (ii) for any content, in particular any Inappropriate Content transmitted by Customer. Bubty shall not be liable for any direct or indirect tax, accounting, legal or other consequences resulting from this Agreement and the granting of the Services does not constitute and is not intended to constitute or replace tax, accounting, legal or other advice.
Limitation of Liability. Bubty cumulative liability to Customer for all claims arising from or relating to the Agreement or the Service, whether in contract, tort, or relating to otherwise, will not exceed the total amount of all Fees paid to Bubty in accordance with the Agreement and all orders hereunder during the six (6) months immediately prior to the date upon which any such liability arises. Customer acknowledges and agrees that the allocation of the risks under this Agreement is the essential purpose of this clause and that the Fees would be substantially higher if Bubty were to assume any further liability other than as set forth in this Agreement. Except if explicitly provided otherwise in this Agreement, no Party is ever liable (whether in contract, tort, including negligence, or otherwise) for indirect damages, consequential damages, costs of procurement of substitute goods or services, loss of revenue, loss of profit, loss of business (opportunities), loss of anticipated savings, loss of data or damages resulting from third-party claims or however caused and under any theory of liability.
No limitation of liability. The limitations set forth in this Section 12 do not apply to the indemnities provided in Section 11 (Third Party Claim Indemnities) and any liability resulting from a breach of Section 9 (Non-disclosure and Confidential Information).
TERM AND TERMINATION
Term of this Agreement. This Agreement is entered into for an indefinite period.
Term of Subscriptions. Subscriptions purchased by Customer commence on the start date specified in the applicable executed Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable executed Order Form, all Subscriptions shall automatically renew for additional periods equal to the expiring subscription term or two years (whichever is shorter), unless either Party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless Bubty has given Customer written notice of a pricing increase at least sixty (60) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed ten percent (10%) of the pricing for the Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant executed Order Form as promotional or one-time.
Termination by both Parties. Either Party may suspend or terminate this Agreement with immediate effect, by notifying the other Party if any of the following events occurs and each of these events will be deemed to be a cause attributable to such other Party:
the other Party has ceased to exist or has been dissolved; or
the other Party has stopped doing business; or
the other Party files for bankruptcy, suspension of payments or similar protection from creditors; or
the other Party has been declared bankrupt or has been granted suspension of payments, on a temporary basis or otherwise; or
the other Party commits a material breach of its obligations under this Agreement which is not remedied within fourteen (30) Business Days of written notice from the non-breaching party requesting the breach to be remedied.
Termination for Extended Force Majeure. If Bubty’s ability to perform hereunder is delayed or prevented, in whole or in part, for a period of sixty (60) consecutive days as a result of an event of Force Majeure, Customer shall have the right, at its sole option, to terminate this Agreement, in whole or in part, by giving written notice of termination to Bubty. Such termination shall be effective no earlier than 10 days after Bubty’s receipt of such notice and without regard to whether the event of Force Majeure ends prior to the date on which the termination becomes effective.
Survival. Rights and obligations under this Agreement which by their nature should survive, including, but not limited to all payment obligations by Customer to Bubty will remain in effect and continue to apply indefinitely after termination or expiration of this Agreement. Without limitation, the following sections shall in any case survive the termination or expiration of this Agreement for any reason: 1, 6, 7, 9, 10, 11, 12, 13.4, 13.5, 13.6, 13.7, 13.8, 14, 15, 16 and those provisions necessary for interpretation or enforcement of this Agreement.
Effect of Termination. Upon termination of this Agreement for any reason:
any accrued rights or liabilities or payments due or the coming into force or continuing in force of any provision of this Agreement which is expressly or by implication intended to survive after termination will not be affected.
outstanding and undisputed payment obligations will become immediately due and payable, whereby Bubty reserves the right to charge any remaining committed Fees despite the termination.
all Licensed Material granted under this Agreement shall immediately terminate.
Customer shall immediately cease all use of the Services.
Customer shall promptly return to Bubty all copies of the User Guide or else destroy those copies and provide assurances (signed by an officer of Customer) to Bubty that it has done so.
Fees upon Termination. Upon any termination for cause by Customer, Bubty shall refund Customer any prepaid Fees covering the remainder of the term of all Subscriptions after the effective date of termination. Upon any termination for cause by Bubty, Customer shall pay any unpaid Fees after the effective date of termination.
Return of Customer Data. Upon request by Customer made within thirty (30) days after the effective date of termination or expiration of Subscription, Bubty will make available to Customer for download a file of such Customer Data or Customer Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, Bubty shall have no obligation to maintain or provide any of such Customer Data and thereafter, unless legally prohibited, may delete all of such Customer Data in Bubty ’s systems or otherwise in Bubty ’s possession or under Bubty ’s control.
ASSIGNMENT
Customer acknowledges that Bubty will be entitled to assign the entirety of its rights and obligations under this Agreement (a) within its group of companies to any Affiliate; or (b) to a third-party which acquires all or substantially all of the assignor’s assets entailed in the performance of Service, provided however that such third-party (i) as the proposed transferee shall agree in writing to be fully bound by the duties and obligations of Bubty under this Agreement and (ii) is not a competitor of Customer, in which case any such assignment shall be subject to Customer’s prior approval, failing which Customer shall have the right to terminate this Agreement. Any assignment of the rights and obligations under this Agreement by Customer shall be effective only with the prior written consent of Bubty. Any attempted assignment in violation of this Section shall be null and void. This Section has property law effect (goederenrechtelijke werking) within the meaning of article 3:83 (2) DCC.
CHOICE OF LAW, JURISDICTION, VENUE
Dutch Law applicable. This Agreement and any contractual or non-contractual obligations arising out of or in connection to it, is governed by and shall be construed in accordance with Dutch Law without regard to its conflict of law principles. Any power of attorney or other document executed in connection with this Agreement, or the transactions provided for in this Agreement will also be governed by and construed in accordance with Dutch Law.
Arbitration. The Parties agree that if any claim, dispute or difference of whatever nature arises under or in connection with this Agreement or any other documents or agreements mentioned herein (including a claim, dispute or difference regarding its existence, termination or validity or any non-contractual obligations arising out of or in connection with this Agreement or any other transaction document (a “Dispute”) which a Party wishes to have resolved, such Dispute shall be referred upon the application of any Party to, and finally settled by, arbitration in accordance the Rules of Arbitration of the Netherlands Arbitration Institute (the “NAI Rules”) as in force at the date of this Agreement and as modified by this Article, which Rules are deemed incorporated into this Article. The number of arbitrators shall be one (1), to be appointed in accordance with the NAI Rules. The place of Arbitration shall be the city of Amsterdam, the Netherlands. The arbitration will be held in English language. The arbitrator shall have the power to grant any legal or equitable remedy or relief available under the applicable law, including injunctive relief (whether interim and/or final) and specific performance and any measures ordered by the arbitrator may be specifically enforced by any court of competent jurisdiction. For the avoidance of any doubt, this specific arbitration clause of is (also) governed by and shall be construed exclusively in accordance with Dutch law.
Provisional measures The Parties agree that any Party may have recourse to any competent court in the Netherlands to seek interim or provisional measures, including injunctive relief and pre-arbitral attachments or injunctions and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. Notwithstanding any contrary provision of the NAI Rules, the Parties agree that no Party may have recourse to any court of competent jurisdiction: (i) for determination by that court of any question of law arising in the course of the arbitration, or (ii) to appeal to that court on any question of law arising out of any award made in the arbitration.
MISCELLANEOUS
Early Access and Beta products. Bubty may look for customers to help test new services or new features. If Bubty wishes for Customer to test early release or beta features/services, it will request whether Customer would like to test such early release or beta features/services in writing. Early access and beta products are made available on an “as is,” and “as available” basis and, to the extent permitted under applicable law, without any warranties, indemnities, or contractual commitments of any kind.
Waivers. Unless and to the extent agreed otherwise in this Agreement, the Parties acknowledge and agree that this Agreement can, in whole or in part, not be rescinded (in Dutch: ontbonden) or nullified (in Dutch: vernietigd), nor can the recission, annulment or adjustment of this Agreement be demanded in (court) proceedings. The application of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG) and of Title 1 book 7 DCC is explicitly excluded.
Notices. All notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to the addresses set forth above. Notice shall be considered delivered and effective on the earlier of actual receipt or when (a) personally delivered; (b) the day following transmission if sent by telex, telegram or facsimile when followed by written confirmation by registered overnight carrier or certified mail; or (c) one (1) day after posting when sent by registered private overnight carrier (e.g., DHL, Federal Express, etc.); or (d) five (5) days after posting when sent by certified mail. Notice shall be sent to the Parties at the addresses set forth on the first page of this Agreement or at such other address as shall be specified by either Party to the other in a notice in accordance with this Section.
Amendment. Any amendment to this Agreement shall only be valid or effective if done in writing and executed by each Party.
No Waiver. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
Compliance with Trade Laws. Each Party shall comply with all applicable laws and regulations regarding the general conduct of business including without limitation (i) all relevant anti-corruption and anti- bribery laws, including the United States Foreign Corrupt Practices Act; (ii) economic or financial sanctions, requirements or trade embargoes imposed, administered or enforced from time to time by US, EU, UK and UN Authorities; (iii) export, re-export and import restrictions and regulations of all agencies and/or authorities of any applicable countries (International Trade Laws). Customer guarantees and ensures that (i) neither it or its directors, officers, affiliates, employees or agents is named on or owned or controlled by any person or entity named on, any list of designated persons or entities of the United States of America and the European Union, or any other applicable jurisdictions under International Trade Laws or otherwise the target of International Trade Laws (Sanctions Target) and (ii) it is not located, organized or resident in any jurisdiction subject to comprehensive sanctions under International Trade Laws, and (iii) it will not (a) permit any End-user or any other person or entity to access or use the Service if the end-user is a Sanctions Target or (b) permit End-users or any other persons or entities to access or use the Services in a manner that could cause Bubty or any of its directors, officers, Affiliates, employees or agents to be in violation of International Trade Laws.
Independent Contractors. Nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency between any of the Parties hereto and none of them shall have any authority to bind the other in any way.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
Force Majeure. Except for each Party’s obligations to pay money, neither Party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by Force majeure.
Counterparts. This Agreement may be executed in counterparts, both of which, when taken together, shall constitute a signed agreement binding upon the Parties. Delivery of a signed counterpart of this Agreement by facsimile transmission, in paper copy by courier or regular mail or as an email attachment in PDF format shall constitute valid and sufficient delivery thereof.
Third-Party Beneficiaries. Bubty’s employees or independent contractors for any performance under this Agreement, including any and all agreements in connection herewith, can, towards Customer, invoke all means of defense afforded by this Agreement as if they themselves were party to this Agreement. Customer’s clients however are not to be deemed third-party beneficiaries of this Agreement.
Complete Understanding. This Agreement, including all Order Forms, SOW and Annexes constitutes the final, complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement.
Hierarchy of Documents. Whatever is agreed in an Order Form, SOW or other document relating to the Services executed between the Parties shall be deemed to be agreed in addition to this Agreement unless explicitly stated otherwise in writing. Only if case of a clear conflict between provisions this Agreement on the one hand and provisions in the Order Form, SOW or other document relating to the Services on the other hand, the provisions contained in the latter shall prevail.
Annex A: Additional Services Terms and Conditions
The following terms and conditions are incorporated into the Agreement. Capitalized words not defined in this Annex shall have the meaning Bubty ascribed to such words in the Agreement.
Bubty is willing to provide Additional Services (including the development of Deliverables) on a time and materials or fixed price basis according to the terms and conditions set forth in this Annex or such other form as the Parties may agree in writing. Such Additional Services may include instruction and training on the use of Bubty products and services; installation, configuration, maintenance and testing of Bubty products and services; evaluation, design and implementation of system architectures; business and network planning; and custom software development. Hereafter, Bubty is referred to as: “We”, “Us” and “Our” and Customer is referred to as “You” and “Your”.
General. All Additional Services to be performed and Deliverables to be developed by Bubty at Customer’s request shall be described in a Statement of Work (“SOW”) . Upon execution by authorized representatives of each Party, each SOW shall become a part of the Agreement. Each SOW will also incorporate the terms and conditions of this Annex.
Our Obligations. We shall perform Additional Services and develop Deliverables for Customer as described in any SOW agreed to by the Parties. We shall perform such Additional Services and develop Deliverables in a reasonable, professional and workmanlike manner in keeping with industry standards and practices. We shall be entitled, in our sole discretion, to determine the method and means for performing the Additional Services and developing the Deliverables. You acknowledge and agree that we from time to time may retain the services of independent consultants to perform, or to assist us in performing the Additional Services and developing the Deliverables.
Your Obligations. You acknowledge and agree that performance of Additional Services is heavily dependent upon information and responses to be provided by you. Accordingly, in addition to any specific responsibilities set out in the SOW you shall: (i) provide the appropriate and necessary resources, and timely and accurate information and documentation, as reasonably required by us, to allow us to perform the Additional Services and develop the Deliverables; (ii) carry out reviews and respond to requests for approval and information on a timely basis; (iii) ensure that we have available to us personnel familiar with your requirements and with the expertise necessary to permit us to undertake and complete the Additional Services; and (iv) you shall make available to us all equipment, material, information, data, network access and/or facilities that we may reasonably require to carry out our obligations. You acknowledge that any delay on your part in the performance of our obligations may have an impact on our activities under any Statement of Work. If the Additional Services are performed on your premises or if we needs to attend at your premises for the development of the Deliverables, you shall provide to us such workspace, computers, equipment and software as is reasonably required by us for the performance of the Additional Services and the development of the Deliverables. You will use the Additional Services only for the purpose for which they have been made available to you and in accordance with our reasonable directions. If you are allowed to download or use any software in connection with the Additional Services, we grant you a personal, non-transferable, revocable, non-exclusive license to use the Software solely for your internal use in connection with the Additional Services and only in accordance with this Agreement and any other written instructions issued to you by us. The software will be deemed to be part of the Additional Services and you agree to comply with the terms of any license provided to you for the use of that software. You are responsible for any of your equipment, or any item not provided, managed or maintained by us. You must ensure that (i) your equipment does not harm the Additional Services, the Deliverables, our network or infrastructure and (ii) connects to our infrastructure, our network and the Additional Services in accordance with any instructions provided to you by us.
Quotes and Fees If we give you a quote in relation to Additional Services, the quote will remain valid for thirty (30) Business Days from the date it is sent to you, unless stated otherwise in writing. Regardless, we may vary or withdraw a quote by notice in writing at any time before it is accepted by you. You shall pay to us the Fees set forth in the Statement of Work either on a time and materials basis at Bubty ’s then-current price, or on a fixed price per project basis to be negotiated between the Parties and set forth in the applicable SOW. You shall reimburse us for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by us in the performance of any Additional Services or development of any Deliverables, provided that such expenses are approved in advance. All fees are exclusive of VAT or (other) taxes and other government levies, unless explicitly stated otherwise. We will invoice you the Fees. The Fees are payable on the date specified in our invoice, unless agreed otherwise Payment shall be made in the agreed currency. Payment shall be deemed to have been made only on the moment it is credited to our account. Where any Fees are payable based on time spent by us, you agree to pay us for that time on the basis of the Hourly Rate. Time will be recorded in 15-minute increments and rounded up to the nearest 15 minutes. We may change the Fees if we agree to modify, alter or change the Services at your request.
Service Warranties. We warrant that:
the Additional Services will be rendered with diligence and will be executed in a workmanlike manner, in accordance with the practices and professional standards used in well-managed operations performing services similar to the Additional Services, and
each Deliverable will perform in accordance with applicable specifications provided by us to you in writing.
In the event of breach of any of these warranties we re-perform the relevant Services, which activities shall not be invoiced you.
If the Additional Services provided to you for any given month during the which these services are provided to you were not performed in accordance with this Clause 5, you must provide written notice to us no later than five (5) Business Days after the last day of the month within which the relevant Services were performed, failing which they shall be deemed accepted by you. For each Deliverable, the foregoing warranty shall commence for such Deliverable upon your acceptance of such Deliverable and shall continue for a period of one (1) month following acceptance.
The remedies in this Clause will be your sole and exclusive remedy for all breaches of any Service warranty.
Early Termination by you. Unless otherwise provided in a SOW, you may terminate a SOW without cause upon thirty (30) days prior written notice to us. In the event of such termination, you shall pay us only for the Additional Services that have been performed up to the effective date of termination, including all other costs for which we have the right to reimbursement. In cases where fees are based on milestones, payment obligations shall be strictly limited to the proportionate amount of work completed towards the next milestone as of the termination date. No charges shall be made for uninitiated or incomplete milestones, ensuring that payments are reflective of actual services rendered and not anticipated future work.
7. Deliverable Intellectual Property Rights. Except as set forth in the Agreement or otherwise set forth in the relevant SOW, we shall own all right, title and interest and all intellectual property rights to any Deliverables created pursuant to this Annex or any SOW hereunder. Subject to payment of the applicable fees set forth in the SOW, we grant to you a perpetual, worldwide, fully paid, royalty-free, non-exclusive, non-transferable license to use the Deliverables for the purposes described in the accompanying SOW.
8. Non-Solicitation. Customer shall not enter into a contract for or of service with an employee of Bubty who has been involved with, directly or indirectly, any of the Additional Services or development of any Deliverables hereunder within twelve (12) months of such employee's last involvement with such Additional Services or Deliverables. Customer shall be permitted to make generalized employment searches, by advertisements or by engaging firms to conduct searches which are not focused on the employees of Bubty and may employ candidates arising from such searches without restriction provided that Customer shall provide documentation to show that such employment arises solely from such permitted employment searches.
Annex B: Data Processing Annex (“DPA”)
1. This Data Processing Annex applies to all processing of personal data on End-Users that Customer provides to Bubty through the Services.
2. Terms such as “personal data”, “processing”, “data controller”, “data processor”, “personal data breach” etc. shall have the meaning assigned to them under the EU GDPR.
3. Bubty and Customer both acknowledge and agree that the exchange of personal data between the Parties does not form part of any monetary or other valuable consideration exchanged between the Parties with respect to the Agreement or this DPA. For the avoidance of doubt, Bubty does not sell Customer’s personal data or the personal data of End-users.
4. Customer and Bubty both acknowledge and understand that with respect to the processing of personal data of End-users (‘data subjects’), which Customer exports to Bubty for the provision of the Services, Bubty acts as a data processor.
5. Customer hereby instructs Bubty to process data subjects’ personal data to the extent required for the performance of the Services under the Agreement.
6. Bubty shall, in relation to any personal data which is processed in connection with the Services:
6.1. process personal data only on documented instructions of Customer, unless otherwise required by the laws of any member of the European Union or by the laws of the European Union applicable to Bubty to process personal data.
6.2. only provide personnel with ‘need to know’ access to the personal data and ensure that all such personnel who have access to or process personal data are under a legal obligation to keep the personal data confidential.
6.3. take appropriate technical and organizational measures to protect the personal data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the level of risk presented by the processing (and having regard to the nature of the personal data) and to the harm which might result from a personal data breach affecting the personal data.
6.4. provide Customer with any assistance as reasonably requested by Customer in order to allow Customer to comply with obligations of Customer under the Data Protection Laws, including the notification of personal data breaches, security of processing and assisting Customer with the performance of any relevant data protection impact assessment.
6.5. provide Customer with reasonable assistance in order to allow Customer to comply with its obligations to data subjects who exercise their rights under the Data Protection Laws. Bubty will make available technical and organizational measures to allow Customer to fulfil these obligations via the account of Customer. Customer hereby acknowledges and agrees that requests sent by Customer via email are not considered as a valid means to exercise its rights and that any such requests will not be processed by Bubty. For the avoidance of doubt, Customer as the data controller is responsible for processing any request or complaint from data subjects with respect to the personal data of a data subject.
6.6. at Customer’s choice, delete or return personal data and copies thereof to Customer on termination of Customer’s agreement with Bubty, unless otherwise required by applicable laws.
6.7 maintain records as required under the Data Protection Laws of the processing activities carried out under the Agreement and this DPA.
6.8. be prohibited from retaining, using, or disclosing the personal data for any purpose other than as specified in the Agreement, as set out in this DPA, or as otherwise permitted by the Data Protection Laws, unless Bubty is required to do so due to a legal obligation, in which case it will act as a data controller.
6.9. not further collect, sell, or use personal data except as necessary for the fulfillment of the Agreement.
6.10. notify Customer as soon as reasonably possible if Bubty receives a notice or communication from a governmental or regulatory body which relates directly to the processing of personal data, as instructed and provided by Customer, by Bubty or its (sub-) processors, unless notifying Customer of such notice or communication is prohibited by law.
7. Customer shall:
7.1. notify Bubty at least two (2) months before exercising any audit right it may have relating to Bubty’s obligations hereunder.
7.2. ensure that any audit does not unreasonably disrupt the business operations of Bubty; and,
7.3. bear and pay for all costs of such an audit, provided that the audit is initiated by the Customer.
8. Customer represents and warrants that it has provided notice to the End-user that the personal data is being used or shared in accordance with the terms and conditions envisaged in the applicable Data Protection Laws. Customer is responsible for compliance with the requirements of the applicable Data Protection Laws to it, as a data controller.
9. If Customer acts as a data controller, Customer guarantees that all processing activities are lawful, have a specific purpose, and any required notices and consents or otherwise appropriate legal basis are in place to enable lawful transfer of personal data. If Customer is a data processor (in which case Bubty will act as a sub-processor, Customer ensures that the relevant data controller guarantees that the conditions listed in this clause are met.
10. Given the nature of the Services, the use of the Services by Customer and Customer’s End-users may require the transfer of personal data outside the EEA; when the performance of the Services involves a transfer of personal data to sub-processors outside the EEA, Customer hereby gives Bubty a mandate for the term of all agreements in place between Customer and Bubty to enter into EU Model Contract Clauses with sub-processors outside the EEA on behalf of Customer, if no other appropriate transfer mechanisms under the Data Protection Legislation apply.
11. By means of this clause, Customer gives Bubty a general written authorization for the engagement of any other third parties as new sub-processors for the processing of personal data, subject to the terms of this DPA. Bubty will not engage any sub-processor in the processing of personal data under this Agreement without prior informing Customer of any intended change concerning the addition or replacement of other processors, thereby giving Customer the opportunity to object to such changes. Customer may reasonably object to Bubty’s use of a new sub- processor (where using such a new sub-processor would weaken the protections for Personal Data provided in this DPA) by notifying Bubty promptly in writing within a thirty (30) Business days’ notice period. Such notice shall explain the reasonable grounds for the objection. Where Customer objects to the new sub-processor Bubty shall work with Customer in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed sub-processor. If Bubty is unable to make such change available within thirty (30) business days from Bubty’s receipt of Customer's notice, either party may terminate the applicable features of the services which cannot be provided by Bubty without the use of the proposed sub-processor.
12. Customer specifically agrees to the engagement of the entities listed as sub-processors of Bubty for the processing of personal data. Bubty shall update the list of sub-processors when a new sub-processor for the processing of personal data is engaged.
13. Bubty will take all available and appropriate contractual measures to ensure that when a sub- processor is engaged:
13.1. the sub-processor will only process personal data if such processing is necessary for performance of the Services or a part thereof, and comply with the specific instructions stated in the Agreement, and:
13.2. data protection obligations providing similar protection as those in this DPA shall be imposed on the sub-processor by way of a contract or other legal act under EU or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the Data Protection Legislation.
14. Bubty remains liable to Customer under this DPA for the performance of the data protection obligations of its sub-processor.
15. Details of the processing:
15.1 Subject matter and purpose of the processing: provision of the Services of Bubty to Customer.
15.2. Categories of personal data: information on End-Users that Customer provides to Bubty through the Services.
15.3. Categories of data subjects: data subjects can include customers of the Customer, employees, suppliers, and any other natural person who is the End-User of Services, from whom Customer provides personal data through the use of the Services.
15.4. Duration of the processing: personal data will be processed for as long as required for the performance of the Services, or as required under applicable law.
16. This Data Processing Annex is governed by the laws of The Netherlands, and the Parties submit to the exclusive jurisdiction of Amsterdam courts for all purposes connected with this DPA, including the enforcement of any award or judgement made under or in connection with it.
