Software Application as Service Agreement (SaaS)
NACK by Ownest
Customer Delivery Risk Scoring
Ownest's Nack IT solution (i) reviews all orders (the "Order") submitted by Client and (ii) provides Client with a default risk assessment (the "Scoring") for each Order.
b. Provision of Services.
Ownest makes the Services available to Client as described in this Agreement and the purchase order(s) (the "Purchase Order"). The "Services" means the products and services ordered by Client pursuant to a Purchase Order.
Ownest provides Client with technical support to enable the implementation of the Service in accordance with Ownest's standard practices.
d. Security Program.
Ownest establishes and maintains an information security and data privacy program that includes physical, technical, administrative and organizational safeguards, that is designed to : (i) ensure the security and confidentiality of Client Confidential Information; (ii) protect against any anticipated threats or hazards to the security or integrity of Client Confidential Information; and (iii) protect against unauthorized disclosure, access or use of Client Confidential Information, in each case.
2. Client Data
a. License to client data.
The parties undertake to comply with EU Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 ("GDPR"), as well as any regulations applicable to End Customers.
The use of the Nack Solution by the Client, Data Controller of the Nack Solution, Processor, will involve the processing of Personal Data. This agreement therefore applies to the processing of Personal Data carried out by the Parties in the context of the provision of the solution.
b. Client Authorization.
Client shall obtain all consents and make all disclosures necessary for Ownest Nack to use the Client Data as permitted by this Agreement. In addition, Ownest may disclose Client Data pursuant to an individual access request or a consumer data request as required by law or in its sole discretion. Notwithstanding anything to the contrary, Ownest shall be entitled to retain and use Client Data associated with a failed delivery after the expiration or termination of this Agreement or any Purchase Order. Ownest is prohibited from selling the Client Data or retaining, using or disclosing the Client Data for any purpose other than the provision of services, (iii) Client hereby informs Ownest that the Business Purpose includes the use and retention by Ownest of Client Data internally for the benefit of all of Ownest's clients for the detection of risk of non-delivery, optimization of e-commerce solutions and similar performance improvement purposes, and (iv) Ownest understands and will comply with the restrictions herein.
c. Client Responsibility.
Client is solely responsible for all aspects of Client Data, including its source, input, accuracy, quality, integrity and management. Client is responsible for (i) obtaining consent from Client's end customers, (ii) providing notice to Client's end customers, (iii) obtaining consent to use automated decision making, (iv) providing Client's end customers with the ability to exercise any access rights, and (v) any requirements or limitations regarding the processing from data from minors, in each case to the extent required under applicable law.
d. Ownest Responsibility.
The Data Processor agrees to : (i) Process the Personal Data solely for the purposes for which it is subcontracted; (ii) Process the Personal Data in accordance with the documented instructions of the Data Controller; (iii) ensure that the persons authorized to process the Personal Data undertake to comply with the regulations in place; (iv) take into account the principles of Privacy by Design and of Privacy by default; (v) implement adequate security measures to protect such Personal Data.
3. Client obligations
a. Use Restrictions.
Except for the rights granted herein, no other rights in or to any Service, express or implied, are granted to Client. Without limiting the foregoing, Client may not : (i) transfer any of its rights to use the Service; (ii) sell, rent, lease or share the Service or its results; (iii) permit any person who is not an Authorized User to use or access the Service ; (iv) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any part of Ownest's Nack online software application provided as part of the Service; (v) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; (vi) access all or any part of the Service or information included therein, including the Scoring provided by Ownest's Nack solution in order to build, improve, develop a product or service which competes with the Service; (vii) use the Service other than for the purpose described herein; (viii) load or test the penetration of the Service in a manner that is, or could reasonably be expected to be, detrimental to Ownest's ability to provide services to any other Client; (ix) use the Service or provide data to Ownest in a manner that violates any applicable law, ordinance, regulation or administrative order; or (x) permit any other Person to do any of the foregoing.
b. Client's IT Infrastructure.
Client is solely responsible for obtaining and maintaining network connections and telecommunications links from its systems to Ownest and all problems, conditions, delays, delivery failures and any other loss or damage arising from or related to Client's network connections or telecommunications links or caused by the Internet. Notwithstanding anything herein to the contrary, Ownest is not responsible for technical issues due to Client's failure to comply with Ownest's instructions; or modification or alteration of the Service by anyone other than Ownest's or Ownest's duly authorized contractors or agents.
c. Authorized Users; Accreditation.
Only those users authorized by Client (individually referred to herein as "Authorized User") may use the Service. Any violation of the terms and/or conditions of this Agreement by an Authorized User shall be deemed to be a violation by Client of such terms and conditions. Client is solely responsible for the security and proper creation, use and termination of all Authorized User names, passwords and other security devices used in connection with the Service and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to unauthorized persons. Client must immediately inform Ownest in writing if there is any reason to believe that an authorized user name, password or other security device has been or is likely to be known by a person not authorized to use it, or is or is likely to be used in an unauthorized manner. Ownest reserves the right to require Client to change any or all of its authorized user names, passwords or other security devices used by Client in connection with the Service, and Client shall promptly comply with any such requirement.
d. Audit; Competition; Exclusivity.
Ownest may audit Client's use of the Services upon reasonable notice, during business hours, no more than once per calendar year, provided that such limitations shall not apply if Ownest has reasonable cause to believe that Client is using or permitting the Service to be used in an unauthorized manner. Client shall not permit any employee, consultant or person who is a direct or indirect competitor of Ownest to access or use the Services. For the term of this Agreement (as defined below), Client agrees not to receive services from any other provider of risk assessment for non-delivery.
4. Fees and Payment
Client agrees to pay the fees described in this Agreement and/or the Purchase Orders (the "Fees").
b. Invoicing; non-refundable.
Client will be billed by invoice on a monthly basis and Client agrees to remit payment by bank transfer or credit card, in each case, within the period specified on the Purchase Order. Unless otherwise specified herein or in a Purchase Order, charges are neither cancellable nor refundable.
c. Late Payment; Disputes.
Unpaid amounts are subject to a finance charge of 1.5% per month or the maximum percentage permitted by law, whichever is less, in addition to all reasonable costs of collection, including reasonable attorney's fees. Any good faith objection to an invoice must be provided in writing to Ownest within thirty (30) days of receipt of the invoice, otherwise Client waives any objection and such invoice shall be deemed final, not subject to dispute and accepted by Client.
All fees are exclusive of taxes or duties. If Ownest is required to collect or pay any tax under this Agreement, or any other similar tax or duty levied by any governmental authority, excluding taxes levied on Ownest's net income, then such taxes and/or duties shall be billed to and paid by Client upon receipt of invoice.
e. Payment Failure, Service Suspension.
Ownest may suspend the Service in whole or part if Client fails to make any overdue payment within five (5) days of Ownest's written request.
5. Term and Termination
a. Duration of the agreement.
This Agreement begins on the Effective Date and continues until the earlier of the following dates: (i) the expiration of all Purchase Orders, or (ii) termination by either party as set forth in this Agreement.
b. Term of Services.
The duration of each Service will be set forth in a Purchase Order. Unless otherwise specified in a Purchase Order, the term of each Service shall be one (1) year (the "Initial Term") and shall automatically renew for consecutive periods equal to the longer of the specified Term or one (1) year (each, a "Renewal Term", and together the "Term") unless either Party notifies the other Party of its intention to terminate such Services at least sixty (60) days prior to the end of the applicable Term.
c. Early termination by Client.
During the term of the Agreement, Client may terminate this Agreement for convenience upon ninety (90) days written notice ("Early Termination"). In the event of Early termination, Client shall pay Ownest an amount equal to the gross average monthly fee charged by Ownest multiplied by the number of months remaining in the term of the Agreement. Client acknowledges and agrees that the foregoing payment constitutes liquidated damages and is not a penalty and that the amount of the actual loss due to the foregoing is difficult to estimate accurately and the amount of the liquidated damages bears a reasonable proportion to the probable loss Ownest will suffer in relation to the foregoing.
d. Early termination by Ownest.
Ownest may terminate this Agreement or any Purchase Order on thirty (30) days notice.
e. Termination for breach.
Either party may terminate this Agreement if the other Party is in material breach of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice from the other Party outlining describing the nature of such breach.
f. Data Portability.
Upon written request by Client, within thirty (30) days after the expiration or termination of the Agreement, and provided that Client has paid all fees, including with respect to invoices not yet due, Ownest will make available to Client for download one or more electronic files of Client's Data stored by Ownest's Nack solution. After this thirty (30) day period, Ownest shall have no obligation to maintain or provide Client Data.
6. Representations and Warranties; Commitments
a. Mutual representations and warranties; agreements.
Each Party represents, warrants and covenants to the other Party that it has the full power and authority to enter into this Agreement.
Except as expressly provided in this Agreement, Ownest provides the Services "as is" and Ownest makes no warranties of any kind, whether express, implied, statutory or otherwise and specifically disclaims all implied warranties, including any implied warranties of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law.
7. Exclusions; Limitation of Liability
a. Exclusion of consequential and incidental damages.
In no event shall any party or its affiliates be liable for any loss of profits, revenues, goodwill or indirect, special, incidental, consequential, coverage, business interruption or punitive damages, loss of data, whether in an action in contract or tort and regardless of the theory of liability, even if a party or its affiliates have been advised of the possibility of such damages or if the remedy of a party or its affiliates otherwise fails in its essential purpose. The foregoing disclaimer shall not apply to the extent prohibited by law.
b. Limitation of Liability.
In no event shall the aggregate liability of either party, or any of its affiliates, arising out of or in connection with this Agreement exceed the total amount paid by Client for the Services giving rise to the liability in the six (6) months prior to the first incident giving rise to the liability. The foregoing limitation shall apply whether an action is in contract or tort and regardless of the theory of liability, but shall not limit Client's payment obligations hereunder.
c. Any claim or action by either party arising out of this Agreement, including but not limited to the Service, must be brought within two (2) years after the date on which the act, event, condition or omission giving rise to such claim or action occurred or could reasonably have been discovered. Any action not commenced within this two (2) year period shall be barred, regardless of any longer limitation period provided by any applicable law or statute of limitations.
a. “Confidential Information” means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information or that a reasonable person should understand to be confidential given to the nature of the information, which is disclosed by the disclosing Party iin connection with this Agreement, whether before, on or after the Effective Date. Confidential information includes the terms of this Agreement. Confidential information does not include any of the following: (i) information that is or will be in the public domain or otherwise available without restriction to one or more third persons without violation of this Agreement by the receiving Party; (ii) information that was known to or in the possession of the receiving Party on a non-confidential basis prior to the disclosure thereof to the receiving Party by the disclosing Party, as evidenced by written records ; (iii) information that has been independently developed by or on behalf of the receiving Party without use of or reference to the Confidential Information; or (iv) information that is disclosed to the receiving Party by a third party without breach of this Agreement by the receiving Party.
b. Protection of Confidential Information.
Each Party shall keep confidential the Confidential Information of the other Party and, except as required by law, shall not make the Confidential Information of the other Party available to any third party, nor use the Confidential Information of the other Party for any purpose other than to provide the services contemplated under this Agreement. Each Party shall take all reasonable steps to ensure that Confidential Information of the other Party to which it has access is not disclosed or distributed in violation of the terms of this Agreement; and neither Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party. Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement.
c. Compelled disclosure.
The obligations of the Parties under this Section shall not apply to the extent of any disclosure required pursuant to a duly authorized subpoena, court order, or government authority, provided that the receiving Party has provided prompt notice and assistance to the disclosing Party prior to such disclosure, so that such Party may seek a protective order or other appropriate remedy to protect against disclosure.
d. Injunctive relief.
Any breach of the confidentiality obligations set forth in this Section may constitute a material breach of this Agreement, which the breaching Party acknowledges may cause irreparable harm to the non-breaching Party, leaving it without an adequate remedy at law. As such, any such breach shall entitle the non-breaching Party to seek injunctive relief in addition to all other remedies, without necessity of posting of a bond or other security in connection therewith.
9. Proprietary Rights and Licenses
Client acknowledges and agrees that Ownest owns all intellectual property rights in the Services and associated documentation. Except as expressly stated otherwise, this Agreement does not grant Client any rights in the Intellectual Property Rights or any other rights or licenses in the Services or associated documentation. Client acknowledges that the Services, the Associated Documentation and the inventions, know-how and methodology incorporated therein are the property of Ownest, as the case may be, and are valuable trade secrets, and that the Services constitute confidential information of Ownest .
b. Intellectual Property Rights" shall mean all rights worldwide in any of the following: (i) patents, patent applications, patent disclosures and inventions (patentable or unpatentable); (ii) trademarks, service marks, trade dress, trade names, logos, company names, Internet domain names and registrations and applications for registration thereof, and all goodwill associated therewith; (iii) copyrights and copyrightable works (including computer programs and masked works) and registrations and applications for registration thereof ; (iv) trade secrets, know-how and other similar proprietary information; (v) waivable or assignable rights of publicity, waivable or assignable moral rights; and (vi) all other forms of intellectual property, such as data and databases, in each case to the extent protectable under applicable law.
a. Press release.
The parties agree to issue a joint press release announcing the relationship between the Companies within six (6) months from the effective date of this Agreement. Ownest's marketing team will work in collaboration with Client's communication or marketing department on the wording and distribution of any such content/release.
b. Use of Logo.
Ownest may, without constituting a commitment to do so, use Client's name and logo on Ownest's website and on promotional and marketing materials and, where applicable, will use such name and/or logo in accordance with Client's trademark and/or branding guidelines, as provided to Ownest.
Ownest has obtained and will maintain Professional Liability insurance coverage for the duration of the policy.
b. Upon Client’s written request, Ownest will provide Client with certificates of insurance evidencing the above coverage.
12. General Provisions
a. No joint venture or partnership.
The parties are independent contractors. This Agreement does not create a partnership, joint venture, franchise, agency, fiduciary or employment relationship between the Parties.
No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of such right.
c. Force Majeure.
If either party is unable to perform any obligation (excluding any payment obligation) under this Agreement because of any matter beyond that party's reasonable control, such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving employees of either party), acts of local or central government or other competent authorities, problems with telecommunications providers, hostile network attacks or other events beyond a party’s reasonable control of one party (a "Force Majeure Event"), that party shall have no liability (including any obligation to issue refunds or credits) to the other for such failure to perform; provided, however, that such party shall promptly resume performance upon the removal of the circumstances constituting the Force Majeure Event.
In the event of any conflict between this Agreement and any purchase order, the terms of such purchase order shall prevail.
Client may not assign or transfer in any way this Agreement, nor delegate any duty or assign or transfer in any way any right hereunder, including by operation of law, without the prior written consent of Ownest. Any purported attempt to assign, transfer or delegate shall be null and void. Ownest may assign this agreement in the event of a change of control, spin-off of one or more Ownest solutions or assignment of the Nack solution business.
This agreement may be signed in one or more copies, in original or electronic form, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
Ownest reserves the right to update these terms with or without notice. Client's continued use of the Service constitutes acceptance of such modifications.
i. Applicable Law and Jurisdiction
In the event of a dispute arising in connection with the negotiation, conclusion, validity, interpretation, performance or non-performance, interruption or termination of this Agreement, the Parties undertake, prior to any referral to a judge, to meet to attempt to negotiate an amicable solution.
In the absence of an amicable agreement between the Parties, any dispute between the Parties relating to the talks, conclusion, validity, interpretation, performance or non-performance, interruption or termination of this contract or more generally any dispute that may arise between the Parties will be brought, on a judicial level, before the Commercial Court of Paris, with the exception of disputes falling within the jurisdiction of specific and specialized jurisdictions.