for NUBITALK SERVICE END USER by COLLAB (“Collab”)
- “Agreement”: these Terms and Conditions, including any Orders and the Support Policies, applying equally to the Trial Subscription and to any subsequent Order;
- “Collab”: the company providing the Enterprise Hosting Service and other related products.
- “Customer”: Customer and its staff accessing and subscribing to the Enterprise Hosting Service in accordance with this Agreement;
- “Client Software” means a software component developed and provided to the Customer by Collab to meet specific requirements or specifications in addition to the standard specifications of the Enterprise Hosting Service and to be used in connection with the Enterprise Hosting Service on an integrated non-detachable way in accordance with these Terms throughout the Subscription Term, if any.
- “Confidential Information” has the meaning set forth in Section 12.
- “Customer Data” means all data, including all text, voice recordings, video or image files and software that are processed through the use of the Enterprise Hosting Service other than SECRET DATA.
- “Data Breach” means a security incident in which Customer Data is lost, copied, transmitted, viewed, stolen or used by an individual unauthorized to do so for a reason directly attributable to COLLAB and/or its staff, contractors and/or Microsoft Azure’s provider.
- “Data Protection Legislation” means the General Data Protection Regulation (GDPR) (EU) 2016/679and all local implementing legislation, and all other applicable Laws and regulations relating to the processing of personal data and privacy including, where applicable, the guidance and codes of practice issued by the relevant data protection authorities;
- “Data Privacy Notices” means the Data Privacy documents and references which are available for consultation and download at Collab’s Website at http://collab.com/nubitalk-data-privacy-notices, as amended from time to time, and that constitute an integrating and forming part of this Agreement.
- “Documentation” means Annexes hereto, Enterprise Hosting Service features indicated at Collab’s Website at http://collab.com/nubitalk-documentation, user manuals and/or training materials electronically or physically provided to Customer, all updated from time to time.
- “Downtime” means the period within which Enterprise Hosting Service is not available and no useful work can be performed.
- “Effective Date” means the effective date specified in the Order or where no such date is specified, the date of placement of such Order by Customer.
- “Effective Service Date” means, with respect to the Enterprise Hosting Service, the date from which a Customer, acting reasonably, has been able to access the Enterprise Hosting Service under this Agreement in at least one of the sites listed in the Proposal.
- “Enterprise Hosting Service” (“the Service”) means Collab’s granting Customer’s access for usage of the SaaS Nubitalk© Service, any Client Software (if existent) and any ancillary Professional Services according to the service selection made by the Customer in the Order subject to corresponding payments of the respective Fees by Customer. While providing the Enterprise Hosting Service Collab may source to one or more third parties, the Collab Partners.
- “Fees” means any subscription fee, setup fee, professional services fee, communications costs and/or any such other fees as may be set out in the Order;
- “Intellectual Property” means all authorship rights under intellectual property laws, including over any and hardware, software, architecture, designs, any other inventions, patents, copyrights, trademarks, service marks, trade names, trade secrets, know-how, moral rights, licenses, database rights, design rights and any other intangible proprietary or property rights, whether registered or not, under statute or common law of Collab and its licensors in respect of any products, materials, assets and/or the Enterprise Hosting Service and parts thereto
- “Nubitalk® Service” means Collab’s contact centre and business communications service provided in a SaaS model.
- “Order” means a Purchase Order to be filled by the Customer and approved by Collab whereby Customer makes clear the functionality contracted as described in Annex I hereto including any ancillary Professional Services at the prices described in Pricing Matrix also in Annex I or based on a Proposal attached hereto under Annex II (if existing) as the case may be. These Terms and Conditions of Use shall apply to any and all Orders. The Customer is bound by an Order when it is submitted to Collab and its purchase items are not contingent on the delivery of any future functionality or features nor on the providing of any oral or written public representations and/or warranties made by Collab with respect to Enterprise Hosting Service.
- “Ordered licenses” means the number of Enterprise Hosting Service accesses purchased and paid for by a Customer through an Order.
- “Points of Access” or “Access Points” means the points of access to the Enterprise Hosting Service designated by a number of agents, users or other entities acting as Agents or Users that can access and use the functionalities of the Nubitalk© Service and the terms and conditions of service configured and active for such Access as determined in the Order.
- “Professional Services” means AD-HOC services ordered by Customer and performed by Collab to either set-up and configure the Enterprise Hosting Service, supervise and monitor and/or support or maintain the Enterprise Hosting Service up to non-standard specific requirements or specifications of the Customer as agreed to with the Customer in writing or otherwise stated in the Proposal.
- “Proposal” (if existing) means the proposal attached hereto as Annex II.
- “SaaS” acronym of Software as a Service, means the model of granting access for use by Customer of the Enterprise Hosting Service and any applicable Client Software in consideration of payment of corresponding Fees to Collab throughout the Subscription Term.
- “Secret Data” has the meaning set forth in Section 7.1.
- “Subscription” means a non-exclusive, non-transferable, non-sub- licensable right to access and use certain Enterprise Hosting Service for Customer’s business operations for the maximum number of Ordered Points of Access, subject to increases as described in Section 9.1.
- “Subscription Term” means the period in time within which a Customer may use the Enterprise Hosting Service according to its Order commencing on the Effective Service Date and continuing for the term specified on the applicable Order.
- “Support Policies” means the maintenance policies applicable to the Enterprise Hosting Service subscribed by Customer as amended and in force from time to time and made available for consultation and download at Collab’s Website at http://collab.com/nubitalk-support-policies.
- “Ticket” means the reference given to any incident raised and opened with Collab’s customer service department.
- “Trial Subscription” when and if available means the possibility of a Customer accessing and using the Enterprise Hosting Service on a contingent, temporary basis without the need of placing an Order, subject to the its registration online at the Collab’s Website under the then indicated conditions. During Trial Subscription the Enterprise Hosting Service may be offered with limited functionality at no cost or at a reduced price to Customer as further stated and amended from time to time in Collab’s Website. Enterprise Hosting Service during Trial Subscription is provided “as is” without representations and warranties of any kind.
- “Trial Term” means the period in time within which the Customer may access and use the Enterprise Hosting Service under Trial Subscription.
- “Uptime” means the period within which Enterprise Hosting Service is available for access and use by Customer. Uptime does not include the proper functioning of scripts or other files installed by Customer, the proper functioning of Customer’s web servers, software, or services or third-party Internet connectivity between Enterprise Hosting Service data centers and Customer’s network.
- “User” means Customer’s employees, consultants, contractors or agents who are authorized to use the Enterprise Hosting Service concurrently with other Users and have been supplied user identifications and passwords.
- TRIAL SUBSCRIPTION
2.1. During the Trial Subscription, the Customer may only use the Enterprise Hosting Service for internal evaluation purposes. They may only access according the number of Points of Access permitted by Collab. Access to the Enterprise Hosting Service will not be available after the end of the Trial Term.
2.2. The Trial Subscription may be converted into a Subscription at anytime during the Trial Term or afterwards by submitting an Order. If the Customer doesn’t convert the Trial Subscription at the end of the Trial Period, the Enterprise Hosting Service, and all its related features, will become unavailable.
2.3. This Agreement shall apply to the Trial Subscription throughout the Trial Term and where applicable, thereafter as provided for herein.
- LIMITED WARRANTY
3.1. Collab warrants that, as from the Effective Service Date, the Service will perform substantially in accordance with the Documentation for the entire Subscription Term. If this is not the case, Collab will use all reasonable commercial efforts, consistent with industry standards, to cure the defects within a reasonable time. The Customer acknowledges that this clause does not apply to eventual modifications made to the Service without Collab’s express involvement or approval.
3.2. Except as set forth in this Agreement, the Service will be provided “AS IS” and “AS AVAILABLE” without warranty of any kind. Collab expressly disclaims all other warranties, representations and/or guarantees with respect to the Service, whether express or implied, oral or written, including without limitation all implied warranties of merchantability or fitness for purpose, and all warranties implied by any course of dealing, course of performance, usage or trade.
3.3. Except as otherwise provided in this Agreement, Collab expressly disclaims any warranty that the operation of the Service will be uninterrupted, continued or error free, or that customers will be able to use, operate, obtain or sustain a certain level of performance or satisfaction with the Service. The Service may be subject to limitations, delays and other problems including, but not limited to, those arising from equipment, networks, connectivity, radio, electrical or electronic interferences, telephonic communications or any others.
3.4. Collab shall not be liable for any delays, errors, downtime (except as provided for in this Agreement, in particular in section 5.2), service interruption, service performance, delivery failures and/or any other loss or damage for a Customer resulting directly or indirectly from use of the Service.
3.5. Collab makes no representation and provides no warranty in relation to suggestions made by Collab for equipment, accessories, and/or any other materials, devices or items to connect, interconnect, enhance, or customize in any way the Service, except as provided by section 4.7 below, except where Collab is making these suggestions based on its specialist knowledge of the Service and it would be reasonable for the Customer to rely on the skill and judgement of Collab’s recommendations.
- ENTERPRISE HOSTING SERVICE
4.1. During the Subscription Term, Collab shall use reasonable endeavours to maintain the Service such that it will perform materially in accordance with the Documentation. We may, however, amend, alter or adapt the Enterprise Hosting Service from time to time provided always that the functionality of the Enterprise Hosting Service shall not materially decrease and shall remain substantially consistent with the Documentation.
4.2. SaaS. Upon payment of the Fees, Collab grants to the Customer a revocable, non-exclusive, non-sublicensable, non-transferable, limited right to access and use the Enterprise Hosting Service for the Subscription Term, according to its Subscription, the Documentation and this Agreement for the intended purposes of, and to receive the benefit of, the Enterprise Hosting Service only. Collab acknowledges and agrees that the Customer’s right of access includes entitlement to use any Client Software specifically tailored and delivered by Collab to satisfy the Customer’s specific requirements or specifications (if any) provided. This usage, however, shall be through access to the Service as provided by Collab. The Customer shall remain solely and directly liable to Collab for all actions of its staff and any end users while accessing and using the Enterprise Hosting Service.
4.3. Support. From the Effective Service Date onwards, subject to payment of corresponding Fees, Collab will provide support service in accordance with the Support Policies, the Proposal attached hereto under Annex II (if existing) and the accepted Order.
4.4. At the sole option of the Customer, the Service may include storage of voice and screen recordings processed through the Service and relating to the Customer’s use thereof. Where this is contracted by the Customer, these recordings will be available from Enterprise Hosting Service’s functionalities solely pursuant to and in accordance to the Data Privacy Notices and the Proposal in Annex II (if/when existent). Collab processes any such Data at the in accordance to instructions of the Customer.
4.5. All Customer’ data, including voice and screen recordings shall be stored and managed as per the Data Privacy Notices.
4.5.1. Data will always be encrypted and managed in a way Collab staff shall have no access to any such information.
4.5.2. Collab warrants and represents that only the Customer will have access to the UserID and password necessary to unencrypt the data which has been stored and encrypted by Collab.
4.5.3. Collab may, for urgent technical reasons, have to reset the password to temporarily gain access to the system. In such case, the Customer shall be informed immediately. As soon as possible, Customer access to the information shall be restored and Collab’s access terminated.
4.6 Collab will manage Customer’s access and data in the Customer’s or the Enterprise Hosting Service best interest. This includes the temporary denial of access, the identity check and the management of the stored information, including but not limited to its transfer, management or deletion, in the following cases:
(i) to protect and defend data’s secrecy or integrity in case of actions of any other third parties, force majeure or suspiciously illicit activities in the Enterprise Hosting Service;
(ii) as per defined in the retention periods defined in the Order;
(iii) at the written request of Customer;
(iv) as imposed by Law, mandated by any governmental, judicial, policy, regulatory or supervisory entity;
(v) as requested by the owners of the data as the same may reasonably prove;
(vi) as determined by the system capacity, may that be processing and memory power or when the maximum storage capacity is reached; or
(vii) upon termination of this Agreement for any reason.
Collab will inform the Customer as soon as possible of any such actions are taken.
4.7. Without prejudice for the liability sections in this Agreement, Collab specifically disclaims any and all liability for any loss or damage as a result of and/or in connection with any of the above said cases of actions indicated in number 4.6 over the Enterprise Hosting Service.
4.7.1 The Customer will not use, send, disseminate, disclose, process and/or store in the Service any payment card information, information on intellectual property, trade secrets or information on health, security or safety of any person, community or country, and/or any other information that could be or lead to breach of the rights of any person or entity or be against any laws (“Secret Data”).
4.7.2. The Customer represents and warrants to Collab that whenever intending to access, use or process Secret Data through/via the Service, they will be in possession of any and all licenses and/or authorizations and/or credentials (if any) and will do so only in strict compliance with any laws applicable to such Secret Data.
4.7.3. Any Point of Access of a Customer to the Service may be suspended or deactivated by Collab at any time, without further notice and at Collab’s sole discretion where Collab reasonably considers that such Point of Access may be in breach of sections 4.7.1., 4.7.2., any other provisions of the Agreement, or any laws. If this occurs, Collab shall inform the Customer without undue delay. Any adjustments to Fees shall apply from the next calendar month of the suspension/deactivation onwards. Re-activation of a Point of Access (if/where applicable) may be subject to additional Fees and/or to the imposition of additional security measures as specified by Collab and its Partners at the sole cost of the Customer.
4.8. Equipment and Connectivity. Collab may suggest minimum technical specifications and/or requirements of equipment generally available in the market for the Customer to connect to the Service. These are made on an “as is” basis without representations and/or warranties of any kind. The customer shall be entirely free to source the equipment to connect/interconnect to/with Service and such will be at Customers’ risk and discretion. Professional advice is highly recommended.
4.9.1. Telephone Numbers. Collab facilitates inbound direct dial numbers for the Subscription Term. During the Subscription Term, after the Trial Term has ended, the Customer may order additional numbers and such will be provided by Collab depending on availability for a Fee agreed in advance. Following termination of this agreement for any reason, Collab shall ensure portability of the telephone numbers to the Customer’s new service provider. Collab shall be entitled to pass on any charges to the Customer which are imposed by the service provider for number portability, upon presentation of receipts or other appropriate evidence of payment, but shall not be entitled to impose any additional charges.
4.9.2. Emergency calls. Nubitalk is not a fixed telephony service and does not guarantee emergency calls.
4.9.3. Special numbers. Nubitalk does not guarantee calls to short numbers, premium numbers or value add numbers or special numbers in general (numbers that are not mobile numbers and not landline numbers).
4.9.4. Availability. The Nubitalk service and apps use the internet and therefore do not guarantee 100% availability.
4.9.5. Responsibility. The user is responsible for the legality of the calls dialled.
- ENTERPRISE HOSTING SERVICE AVAILABILITY
5.1. Standard Service Level Agreement (“SLA”). Targeted Uptime will be 24 hours a day, 7 days a week, excluding:
- planned Downtime of which Collab will give at least 48 hours’ notice via the Enterprise Hosting Service and which Collab will schedule to the extent reasonably practicable between 1:00 AM Central European Time to 5:00 AM Central European Time;
- any Downtime caused by urgent and critical technical interventions on the Enterprise Hosting Service which, if not taken in time, would cause greater damage to the Customer, in Collab reasonable technical assessment;
- any unavailability caused by Force Majeure or other labour problems, telecommunications, Internet service availability or hosting facility failures or delays involving hardware, software or power systems not within Collab’s possession or reasonable control;
- network intrusions, denial of service attacks or any other type of attacks, threats or vulnerabilities or any other actions Collab might reasonably be forced to take to prevent those;
- quality of service issues that cause minor or partial loss of functionality, intermittent problems or minor degradation of operations, such as audio noise or static on calls, intermittently slow network connectivity, or outbound calls occasionally failing to certain area codes due to PSTN congestion,
- loss of non-critical functionality such as wallboard or historical statistical modules;
- Downtime caused by Customer’s use of Enterprise Hosting Service in violation of this Agreement; and
- as otherwise defined in the Support Policies.
5.2. Downtime. “10 For 1” Credit policy. For every 10 full minutes (600 seconds uninterruptedly) of downtime below the SLA in a calendar month Collab shall refund the Customer as a credit against future invoices for 1% (one percent) of the corresponding monthly Fee up to 10% (ten percent) (“SLA Credit”). The Customer is not eligible to accrue SLA Credit for Downtime that occurs while any valid and undisputed invoices are owed to Collab, nor can SLA Credit be applied to invoices issued prior to the date when Downtime occurred unless there are no further invoices to be issued, in which case the SLA Credit will be paid by Collab directly to Customer by way of bank transfer. Customer must submit a request for an SLA Credit by opening a Ticket in Collab’s Customer Care case management system within 30 (thirty) days as of the date when Downtime occurred.
5.3. Long Downtime. On the unlikely event of unavailability of the service for a period longer than 8 straight hours (out of the previously agreed maintenance windows) and if proved that downtime is Collab’s sole responsibility (“Long Downtime”), SLA Credit may be instead extended to 20% (twenty percent) of the Fees applicable to such month in which Long Downtime occurs.
5.4. SLA CREDIT UNDER CLAUSE 5.2. AND 5.3 IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND COLLAB’S SOLE LIABILITY FOR INTERRUPTION, FAILURE, NON-PERFORMANCE AND/OR ANY OTHER UNAVAILABILTY OF THE ENTERPRISE HOSTING SERVICE OR BREACH OF SLA. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COLLAB MAKES NO FURTHER REFUNDS AND/OR REPAYMENT OF ANY MONEYS PAID BY CUSTOMERS IN CONNECTION WITH THE ENTERPRISE HOSTING SERVICE OR SLA.
- CUSTOMER RESPONSIBILITIES
6.1. Customer Use. Customer is responsible for all activity occurring under Customer’s User accounts in all Access Points and for the manner in which it and its Users use Enterprise Hosting Service, including the policies and procedures it establishes to protect the security of data, computer network and other facilities, its choice of equipment, software and online content. In addition, Customer will:
- use commercially reasonable efforts to prevent unauthorized access to or use of the Enterprise Hosting Service;
- notify Collab immediately by telephone and confirm by fax or email of any unauthorized access or use or any other known or suspected breach of security, including without limitation misappropriation or security breach of Enterprise Hosting Service login credentials, and use commercially reasonable efforts to immediately stop any unauthorized access, unauthorized use, other security breach or violation of law known or suspected by Customer;
- be responsible for custody and use of Enterprise Hosting Service login credentials.
6.2. Other Customer Responsibilities. Customer will be responsible for:
- selecting, purchasing and configuring computer hardware, software, communication equipment and related services at Customer premises, including Internet service, voice and data service with sufficient quality and bandwidth to allow trouble free browsing, data upload, download and high quality voice and video transmission, as per the intended usage;
- maintaining its equipment to ensure connectivity to Enterprise Hosting Service;
- resolving network issues and procure any required equipment modifications and upgrades necessary to support Enterprise Hosting Service during the Subscription Term; and
- all facilities, network, equipment and software on the internal side of the point at which the public telephone network ends and connects to Customer’s network.
6.3. Prohibitions. Save as set out in this Agreement, Customer will not and will not permit others to:
- license, sublicense, sell, resell, rent or lease the Enterprise Hosting Service or any parts thereof including Documentation and Client Software or use Enterprise Hosting Service or Client Software for purposes other than permitted pursuant to this Agreement and the Annexes hereto;
- access or use Enterprise Hosting Service, Documentation or Client Software except:
- as designated in the Documentation and the Annexes hereto in the context of their internal business operations or domestic use;
- under compliance assurance by any Users of the terms of this Agreement, remaining liable for the acts and omissions of any end users, affiliates and contractors.
- transfer or use the Enterprise Hosting Service, Documentation or Client Software in a country other than that to which Collab shipped or otherwise provided the Enterprise Hosting Service. Customer and Users may not alter, derive, copy, modify or by any other possible means infringe or attempt to infringe the Enterprise Hosting Service and Client Software’s copyright or any other intellectual property NOR HIDE, DEFACE, SCRATCH, DELETE OR HINDER MARKS, LEGENDS OR NOTICES DISPLAYED OR SHOWN.
- Customer and Users may not copy, frame or mirror any part or content of Enterprise Hosting Service, other than copying or framing Customer’s own intranets or for Customer’s own business purposes.
- Customer and Users may not:
- reverse engineer or decompile Enterprise Hosting Service or Client Software or any parts thereof;
- access Enterprise Hosting Service or Client Software in order to build a competitive product or service, or copy any features, functions or graphics of Enterprise Hosting Service or Client Software;
- infringe Collab’s or its licensors’ Intellectual or Industrial Property;
- use Enterprise Hosting Service to send spam or otherwise duplicative or unsolicited messages or store or transmit infringing, libellous, or otherwise unlawful or tortious material or transmit material in violation of third-party privacy rights;
- use Enterprise Hosting Service to intentionally store or transmit viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs, interfere with or disrupt the integrity or performance of Enterprise Hosting Service or third-party data contained therein, or attempt to gain unauthorized access to Enterprise Hosting Service or their related systems or networks; or
- other than in accordance with numbers 4.7.1 and 4.7.2. upload, store, or transmit through Enterprise Hosting Service any Secret Data or any other data or information otherwise prohibited by the Documentation or the applicable Laws.
- CUSTOMER DATA
7.1. License. The Customer grants Collab a non-exclusive license to use, copy, store, transmit and display Customer Data as necessary to provide, maintain, improve, modify, monitor and upgrade the Service, including as required by law or regulation.
7.2. Storage and Security. Subject to 7.2.1., where the Service accesses, stores, transmits or processes Customer Data, Collab shall be responsible and liable to the Customer for any failure to store such Customer Data in a secure manner as described the Data Privacy Notices.
7.2.1. The Customer acknowledges and accepts that Cloud Storage of Customer Data will be provided via the Microsoft Azure® Service and the Communications of such Customer Data is provided via the Colt® services or eventually others, all subject to the terms and conditions stated in Data Privacy Notices. The Customer acknowledges and accepts that the Cloud Service providers, included but not limited to Microsoft® and Colt®, have their own Data Privacy statements available online and may amend or vary the terms of their services and/or cancel, alter or suspend them at any time and that Collab shall have no control in these situations. The Terms and Conditions of the Data Privacy Notices shall be valid and legally binding to the Customer, while also indirectly benefiting from use of the Cloud Service providers offers in connection with certain functionalities of the Service, including but not limited Microsoft Azure® Service and Colt® services.
7.2.2. The Customer warrants that Customer Data will not violate any third party’s rights or any applicable laws. Collab may withhold and/or remove Customer Data without notice in the event of any material breach by the Customer of the terms of this Agreement and/or in the conditions set forth in section 4.7. Notwithstanding the foregoing, Collab shall, provided the Customer gives written notice no later than 90 days after termination, return and/or destroy (at Customer’s sole election) all such Customer Data “as is” and at Customer’s sole expense.
7.2.3 Customer acknowledges and accepts that certain data might be sensitive and due to its nature potentiate criminal activities (e.g. hacking, spying, identity stealing, fraud) that may be impossible to foresee and control despite full compliance of Collab with the herein terms. Customer shall therefore proactively adopt and implement protective appropriate business technical and organisational measures and control procedures so as to protect such data from being collected, processed and/or retained, recorded or stored into/via the Enterprise Hosting Service (e.g. without limitation Customer shall ensure that recording and storage functionalities of the Enterprise Hosting Service are disabled and stopped prior to disclosure by any of its final customers of any Secret Data including without limitation any personal financial data such as payment card information, creditworthiness or similar).
7.3. For the purposes of the Data Protection Legislation, Customer is the ‘Data Controller’ and Collab is the ‘Data Processor’ in respect of any Customer Data. Customer shall be the “Data Controller” and “Data Processor” of any Secret Data contained in the Customer Data.
7.4. Collab shall implement appropriate technical and organisational measures to protect Customer Data against unauthorised or unlawful processing and accidental destruction or loss.
7.5. The Parties shall promptly refer to the other Party any requests, notices or other communication from data subjects, the Supervisory Authority or any other law enforcement authority for the other Party to resolve, and provide such information as they may reasonably require, and within the timescales reasonably required, to allow them to comply with the rights of data subjects, including subject access rights or with notices served by the Information Commissioner or other law enforcement body.
7.6 Customer shall take all necessary steps in building a solution which interacts with the Enterprise Hosting Service which will be compliant with industry standard IT and data security requirements. For the avoidance of doubt, the solution being built by Customer will be wholly owned by Customer and Customer will be solely responsible for the functionality and compliance of the solution with any Laws.
- PROFESSIONAL SERVICES
8.1. Orders. The ordering of Enterprise Hosting Services and of any specific ancillary Professional Services up to the requirements of the Customer shall be placed by Customer by means of an Order. This Agreement governs all Orders for Professional Services until Professional Services are terminated or completed.
8.2. Professional Services Limited Warranty. Collab warrants for a period of 30 (thirty) days that Professional Services other than support and maintenance services will be performed with due care, in a professional and competent manner consistent with applicable professional standards and in accordance with all applicable laws and regulations. Collab, at its option, will re-perform Professional Services other than support and maintenance services that within the said warranty period are verified not to comply with the warranty at no additional charge, or if not practical and solely at Collab’s option, refund the part of the Professional Services Fee, if paid, for the Professional Services that do not comply with the warranty.
8.3. COLLAB SHALL HAVE NO OTHER LIABILITY WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE. COLLAB, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL OTHER WARRANTIES, REPRESENTATION, AND GUARANTEES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, FOR PROFESSIONAL SERVICES OR DELIVERABLES.
8.4. Disclaimer. The warranty provided in Section 8.2 and 8.3 does not cover problems caused by:
- abuse, misuse, alteration, neglect, accident, unauthorized repair or installation, or acts or omissions of any party other than Collab; or
- defects, problems or errors caused by hardware, software, networks, or systems not supplied by Collab and/or other than directly and exclusively caused by Collab Professional Services;
- Support and maintenance services to which terms of SLA and remedies in respect thereof shall exclusively apply.
- FEES AND PAYMENT
9.1. Fees. Customer will pay Fees in respect of the Services hired from the Services Catalogue in Annexes I and II hereto as included in the Order. Customer will pay for additional Service or Access Points added in a given month to be invoiced in next forthcoming invoices. Access Points may be removed in any month and Customer will not have to pay the Subscription Fee for such reduced Access Points in forward months. Reduction in the number of Access Points can only be made provided that they do not fall below the agreed minimum Access Points specified in the Proposal (if existing) and Order when/if applicable. The unit price per Access Point is specified in the Order and Pricing Matrix included in Annex I. Except as otherwise provided for herein Fees are non-refundable and Customer’s payment obligation cannot be cancelled below a minimum Ordered Service when/if applicable.
9.2. Invoicing and Payment. Unless specified on an Order, Fees are billed monthly in advance. Unless specified on an Order, Professional Services Fees are billed as services are performed. Undisputed and valid invoices are payable 30 (thirty) calendar days from invoice date if not otherwise specified in an Order.
9.3 Late payments. If Customer fails to make any payment due to Collab under this Agreement by the due date then, without limiting Collab’s remedies under this Agreement or in law, Collab may at its sole discretion either automatically suspend access and use of the Enterprise Hosting Service or terminate this Agreement. Customer shall pay interest on the overdue amount at the rate of six per cent (6%) per annum above the then current European Central Bank base rate at the date the invoice was issued, on any validly issued invoices paid late. Customer shall pay the interest together with the overdue amount. Any suspended Enterprise Hosting Service may only be re-activated by Collab when any and all payments by Customer are duly settled and re-activation of Enterprise Hosting Service may be subject to additional charges.
9.4. Collab reserves any and all rights in relation to assessment of creditworthiness of any Customers and effective granting of any credit to Customers. Collab may revise the terms of payment and any credit granted to Customers from time to time and/or determine any specific financial terms to each and every specific Customer at its sole discretion. Invoices are non-negotiable unless authorised beforehand.
9.5. Taxes. Fees are exclusive of taxes and the Customer will pay all applicable taxes on the Service, except taxes on Collab’s net income in Portugal. Fees payable by Customer will not be reduced by any withholding, retention or set-off by Customer so that Collab Fees remain net. Customer will provide a tax exemption certificate or tax payment receipt prior to Collab’s delivery of Enterprise Hosting Service if/when applicable or as requested by Collab.
9.6. Verification. Within 10 (ten) days of Collab’s reasonable request but no more than twice annually, Customer will provide access at reasonable times to its sites and records to enable Collab to monitor, audit and verify Customer’s compliance with the terms of this Agreement at the expense of Collab. Should the audit reveal a breach of the Agreement, Customer will pay any additional Fees due for Enterprise Hosting Service used in excess of the Order, including Fees in arrears and Collab’s expenses with the audit.
- 10. BINDING AGREEMENT.
Each party represents and warrants that it has the legal power to enter into this Agreement and will be legally bound by its terms.
- PROPRIETARY RIGHTS
11.1. Intellectual Property Ownership; Suggestions. Collab, its affiliates or licensors own and retain all right, title and interest to and in:
- all Intellectual Property in Enterprise Hosting Service, Client Software and Documentation,
- all other Collab information, proprietary materials, software, products and all derivative works, and
- any other information, data or materials relating to Enterprise Hosting Service
(all the above collectively, “Collab Technology”).
11.2. COLLAB’S NAME AND LOGO AND THE PRODUCT NAMES ASSOCIATED WITH ENTERPRISE HOSTING SERVICE INCLUDING BUT NOT LIMITED TO ONECONTACT AND NUBITALK ARE TRADEMARKS OF COLLAB IN SEVERAL COUNTRIES, AND NO RIGHT OR LICENSE IS GRANTED BY ANY MEANS TO CUSTOMER FOR USING THEM UNLESS COLLAB SO EXPRESSLY AUTHORIZES IN WRITING. Collab reserves the right to enforce any and all rights of Collab, its licensors and partners including seeking adequate protective order or injunctive relief in all jurisdictions and before any courts or instances of competent jurisdiction to defend and protect the Enterprise Hosting Service, its parts and components and any and all intellectual or industrial property rights in respect thereof or in connection there with. Customer grants to Collab an irrevocable, royalty-free, worldwide, perpetual license for Collab to use or incorporate and/or modify or convert any suggestions, ideas, enhancements, feedback, recommendations or other information provided by Customer relating to Enterprise Hosting Service.
12.1. Definition of Confidential Information. As used herein, “Confidential Information” means any material, data, or information, in any form or media, whether disclosed orally, visually or in writing or marked as confidential or not, whether disclosed before or after the date of this Agreement which is proprietary or confidential to the party and disclosed by such party (Disclosing Party) to the other (Receiving Party) in connection with, in the context of or by virtue of the existence of this Agreement, its performance or the commercial relationship by and between the Parties and that by its nature, context of disclosure, tagging, announcement or any other statement by its owner or discloser ought to be reasonably considered to be privileged, private, proprietary and/or confidential. Confidential Information includes without limitation: this Agreement, Orders, Enterprise Hosting Service, Client Software, Documentation, Collab Technology, Customer Data, either party’s non-public data or personally identifiable information regarding employees, products, internal affairs, prices and products and/or customers, products or markets whether such Confidential Information is residing on the party’s computer systems or elsewhere and all Intellectual Property. Confidential Information does not include information that is:
- publicly available without breach of this Agreement;
- reasonably shown to disclosing party’s satisfaction to have been known by receiving party prior to disclosure or independently developed by receiving party subsequent to disclosure without breach of these terms; or
- obtained by receiving party from a third party without confidentiality obligation (for the avoidance of doubt, advertising and/or availability of the Enterprise Hosting Service and/or granting of the licenses in relation thereof by Collab including availability and licensing of the Client Software shall not be construed and/or interpreted as placing the Collab Technology and its integral parts including but not limited to Enterprise Hosting Service in the public domain).
12.2. CONFIDENTIAL INFORMATION OF THE PARTIES DISCLOSED BY/TO EACH OTHER BY MEANS OTHER THAN VIA THE COLLAB ENTERPRISE HOSTING SERVICE
12.2.1. The Parties shall not use the Confidential Information, neither directly nor indirectly, except as absolutely necessary for the performance of this Agreement.
12.2.2. The Receiving Party shall take all necessary measures to ensure the confidentiality of the Confidential Information as stipulated in the present Article and to ensure that such confidentiality is respected by its employees.
12.2.3 The Confidential Information furnished to the Receiving Party or coming to its knowledge by way of performance of the Agreement shall remain the exclusive property of the Disclosing Party in all material times.
12.2.4. Each Party may disclose Information to its employees WHO HAVE A NEED TO KNOW to the effects of performance of this Agreement or in connection herewith provided HOWEVER that prior to any such disclosure the Party ensures that any such employees are bound to obligations of confidentiality no less onerous than those provided for herein.
12.2.5. Upon expiration or termination of the Agreement or any Order, whichever’s the last, the obligations herein relating to confidentiality shall continue in full force and effect for a period of three (3) years.
12.2.6. To the extent permitted by law, the Receiving Party will promptly notify Disclosing Party if it is compelled by a court to disclose Confidential Information and will take any reasonable action requested to maintain the confidentiality of the Confidential Information.
12.3. CUSTOMER AND THIRD PARTIES´ CONFIDENTIAL INFORMATION VIA THE ENTERPRISE HOSTING SERVICE SAVE AS SET OUT IN THIS AGREEMENT, CUSTOMER UNDERSTANDS AND ACCEPTS THAT COLLAB ENTERPRISE HOSTING SERVICE MIGHT HAVE NO TECHNICAL MEANS AVAILABLE TO PROTECT AND SAFEGUARD CONFIDENTIAL INFORMATION THAT IS CIRCULATED, MADE ACESSIBLE OR DISSEMINATED VIA THE ENTERPRISE HOSTING SERVICE OR STORED THEREIN. CUSTOMER UNDERTAKES NOT TO STORE, DEPOSIT, MANAGE OR BY ANY OTHER MEANS MAKE ACCESSIBLE, MANAGE, DEAL WITH, TRANSMIT, DISCLOSE OR REFER TO ANY CONFIDENTIAL INFORMATION OF CUSTOMER OR ANY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO SECRET DATA THORUGH/VIA THE ENTERPRISE HOSTING SERVICE.
12.3.2 SAVE AS SET OUT IN THIS AGREEMENT, COLLAB MAKES NO WARRANTIES OR REPRESENTATIONS IN RELATION TO ANY CONFIDENTIAL INFORMATION THAT IS CIRCULATED, MADE ACESSIBLE OR DISSEMINATED VIA THE ENTERPRISE HOSTING SERVICE OR STORED THEREIN AND EVERY AND ALL CONFIDENTIAL INFORMATION ACCESSED, MANAGED, DEALT WITH, TRANSMITTED, DISCLOSED, REFERENCED OR REFERRED BY ANY MEANS THROUGH/VIA THE ENTERPRISE HOSTING SERVICE SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF CUSTOMER.
13.1. In addition to other terms of these Terms and Conditions, Customer will defend and indemnify Collab, its, licensors and affiliates, and each of their respective employees, officers, directors, and representatives, against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim concerning:
- Customer’s use, and use by Customer’s Users of Enterprise Hosting Service or Client Software other than in accordance with the Documentation and this Agreement;
- violation of applicable laws; or
- a dispute between Customer and its customers.
13.2. In addition to other terms of these Terms and Conditions, Collab will defend and indemnify Customer against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim concerning:
- Customer’s use of Enterprise Hosting Service or Client Software in accordance with the Documentation and this Agreement;
- violation of applicable laws.
13.3. The indemnified party will notify the other party promptly of any claim once the indemnified party has actual knowledge of same. The indemnifying party may:
- use counsel of its own choosing (subject to the indemnified party’s written consent) to defend against any claim; and
- settle the claim as it deems appropriate, provided the indemnifying party obtains the indemnified party’s prior written consent before entering into any settlement. The indemnified party may also assume control of the defense and settlement of the claim at any time.
- LIMITATION OF LIABILITY
14.1. NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES A PARTY’S LIABILITY FOR BREACH OF SECTIONS 6.3., 11, 12.2, 13, DEATH OR PERSONAL INJURY ARISING OUT OF ITS NEGLIGENCE, OR THAT OF ITS EMPLOYEES OR FOR LOSSES BY THE OTHER PARTY ARISING OUT OF THE FIRST PARTY’S (OR ITS EMPLOYEE’S) FRAUD, OR WILFUL MISCONDUCT OR ANY OTHER LIABILITY TO THE EXTENT THE SAME CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
14.2. SUBJECT TO SECTION 14.1, NEITHER PARTY WILL BE LIABLE IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY INDIRECT, CONSEQUENTIAL PUNITIVE OR INCIDENTAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER AND HOWEVER CAUSED OR ANY INTERRUPTION OF BUSINESS OR OPERATIONS, COSTS OF RECOVERY, LOSS OF GOODWILL, LOSS OF DATA AND THE COSTS OF RESTORATION OR RECONSTRUCTION OF ANY DATA OR DATABASES, LOSS PROFITS OR REVENUE, IN EACH CASE, EVEN IF THE PARTY HAS BEEN ADVISED OF THEIR POSSIBILITY OR SUCH LOSSES ARE REASONABLY FORESEEABLE.
14.3 SUBJECT TO SECTIONS 14.1 AND 14.2 COLLAB’S (AND ITS AFFILIATES’ OR LICENSORS’) LIABILITY TO THE OTHER PARTY IN ANY 12 MONTH PERIOD WHETHER IN CONTACT OR TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED, THE AMOUNT OF FEES PAID IN THE RELEVANT 12 MONTH PERIOD PRECEDING THE EVENT BEING THE SUBJECT MATTER OF THE CLAIM.
14.4. NEITHER PARTY’S FAILURE TO EXERCISE ANY RIGHT AND/OR REMEDY UNDER THIS AGREEMENT OR BY LAW SHALL BE REGARDED OR INTERPRETED AS A WAIVER.
- TERM AND TERMINATION
15.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Subscription Terms have expired or been terminated in accordance with Sections 15.3, 15.5 and 15.6 below.
15.2. Subscription Term. Enterprise Hosting Service is available from the Effective Service Date for the Subscription Term specified in the Order (the end of the calendar month of the order), and the Subscription Term will renew automatically. The Customer may cancel renewal of the Subscription Term by written notice to Collab sent in accordance with section 15.5 below.
15.3. Termination for Cause. Either party may terminate this Agreement in the event that the other party (the ‘defaulting party’) commits a material breach of this Agreement remains uncured more than 30 days after written notice from the ‘non-defaulting party’.
15.4 Suspension of the Enterprise Hosting Service. Without prejudice to suspension rights conferred to Collab elsewhere in this Agreement, Collab may (at its sole discretion) suspend the Enterprise Hosting Service in the event that the Customer breaches this Agreement and such breach remains uncured for more than 30 days after written notice from Collab.
15.5. Termination by Collab. Collab may terminate this Agreement, a Subscription and/or or license, or terminate Enterprise Hosting Service:
- immediately upon written notice if Customer infringes Collab’s or its licensors Intellectual Property or fails to comply with any Subscription, or if Collab is required to do so by law; or
- if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
15.6. Termination by Customer. Customer may terminate this Agreement or any Order for convenience:
- At any time by providing at least ninety (90) days’ prior written notice to Collab without further obligation or liability to Collab before the renewal date.
- At any time by providing at least thirty (30) day’s prior written notice to Collab during the first 90 (ninety) days as from the Service Effective Date without further obligation or liability to Collab.
- In such case of 15.6 (a) or (b), Customer shall pay to Collab any outstanding and undisputed invoices in respect of the Professional Services performed up to and including the date of termination; or
- with immediate effect in the event that the maximum 10% (ten percent) SLA Credit accrues to the benefit of the Customer, in accordance with Section 5.2, in 6 (six) consecutive months and/or in the event there is unavailability for a period longer than Long Downtime as provided for in Section 5.3 in 3 (three) consecutive months.
15.7. Effect of Termination. Upon termination, the Customer’s Subscription will cease, along with all licences and deliverables. The Customer must return or destroy any Confidential Information, Client Software and Documentation as Collab directs, and upon Collab’s request provide written certification of such destruction.
15.8 Surviving Provisions. The provisions pertaining to Liabilities and Limitation of Liability, Indemnification, Warranties, Confidential Information, Intellectual property, Licensing, Payment Terms, Orders, Applicable Laws and Disputes Resolution shall survive any termination or expiration of this Agreement.
- OTHER TERMS
16.1. Entire Agreement. This Agreement constitutes the entire agreement between Collab and Customer in relation to the Enterprise Hosting Service and shall supersede all prior agreements, arrangements and understandings between the parties whether oral or written, concerning its subject matter. Each party hereby confirms that it has not relied upon any representations, statements, information or promises made by the other party that are not expressly set out in this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties (save for changes to the Support Policies which Collab may amend from time to time).
16.2 Invalidity. If any term of this Agreement is illegal, invalid, or unenforceable, the other unaffected terms shall remain in full force and effect and the Agreement shall remain valid without the invalid, unenforceable and/or invalid term.
16.3. Assignment. Collab may assign, transfer, novate or subcontract this Agreement in whole or in part to any entity. Customer may not assign transfer, novate or subcontract this Agreement, in whole or in part, without the prior written consent of Collab.
16.4. Force Majeure. For the purposes of this Agreement, “Force Majeure” in relation to either party means an event or circumstance which is beyond the reasonable control of that party and which includes:
- an act of God or any fire, flood, earthquake, epidemic or other similar event; or
- a civil commotion or disorder, riot, invasion, war, epidemic or civil unrest, except to the extent that such event or circumstance is caused by:
- a party’s own default, misconduct or negligence (or that of its employees); or
- events or circumstances that could have been prevented, overcome or mitigated by that party as a result of exercising reasonable care.
16.5 Neither party will be liable to the other as a result of any delay or failure in the performance of its obligations under this Agreement if and to the extent that such delay or failure is caused by Force Majeure.
16.6. Governing Law and Disputes Resolution. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Portugal. The parties irrevocably agree that the courts of Lisbon, Portugal shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
16.7. No Agency. Each party is an independent contractor and may not commit the other party in any way without written authorization. This Agreement does not create an employment, joint venture, partner, or agency relationship or any other between Collab and Customers.
16.7. Notice. Notice or approval must be in writing signed by a party’s authorized representative and sent to the address provided on the Order or otherwise specified in writing by a party for notice. Notice must be sent by mail or overnight courier, with return receipt, and is effective 1 business day after being sent by overnight courier or 3 business days after being sent by mail.
16.8. Publicity. Collab will not be entitled to publish any material featuring Customer including Customer’s trademarks, service marks, logos or branding, without the prior written approval of Customer.
16.9. Third Party Beneficiaries. This Agreement is for the benefit of Customer only and Collab and Collab’s successors and permitted assigns. This Agreement is not for the benefit of any other third parties.