TIM Saas Agreement – GENERAL TERMS
In the Agreement, the following terms have the stated meaning:
|TIM Software||the software owned by the Supplier (and its licensors) that is used to provide the SaaS Service.|
|Agreement||this SaaS Agreement, including Section A (Agreement and Key Details, including the cover page and signature clauses) and Section B (General Terms).|
|Confidential Information||the content of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement. Intellectual Property owned by the Supplier (or its licensors), including the TIM Software, is the Supplier’s Confidential Information. The Data is the Client’s Confidential Information.|
|Data||all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Client that is stored using, or inputted into, the Services.|
|End Date||the end date set out in the Key Details.|
|Fees||the fixed fees and volume fees set out in the Key Details, as updated from time to time in accordance with clause 5.4. and described in Annex A “TIM pricelist”|
|Force Majeure||an event that is beyond the reasonable control of a party, excluding:
· an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
· a lack of funds for any reason.
|Intellectual Property Rights||Includes without limitation, any and all patents, trademarks, service marks, logos, trade names, internet domain names, copyright or copyright applications (including rights in computer software and circuit layouts) and moral rights, database rights, semi-conductor topography rights, utility models, rights in designs, in inventions, in know-how or in confidential information and all other intellectual property rights or rights resulting from intellectual activity, in each case whether registered or unregistered, whether registrable or unregistrable and all rights or forms of protection having equivalent or similar effect anywhere in the world. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.|
|Key Details||the Agreement specific details set out in Section A of the Agreement.|
|Objectionable||includes being objectionable, defamatory, obscene, harassing, threatening, or unlawful in any way.|
|Payment Terms||the payment terms set out in the Key Details (if any).|
|Personal Information||has the meaning given in the EU GDPR regulations.|
|SaaS Service||the service having the core functionality described in the Key Details.|
|Services||the SaaS Service and any Related Service as set out in the Key Details.|
|Start Date||the start date set out in the Key Details.|
|Underlying Systems||the TIM Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third-party solutions, systems and networks.|
|Website||the Internet site at the domain set out in the Key Details, or such other site notified to the Client by the Supplier.|
|Year||a 12-month period starting on the Start Date or the anniversary of that date.|
In the Agreement:
The Supplier must use best efforts to provide the Services:
Unless otherwise provided in Section A, the Supplier’s provision of the Services to the Client is non-exclusive, and nothing in the Agreement prevents the Supplier from providing the Services to any other person.
The Supplier will use reasonable efforts to ensure the SaaS Service is available /on a 24/7 basis in EU countries. However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. The Supplier will inform the Client of any possible planned unavailability at least 15 days in advance. Planned system unavailability’s will to the best of Supplier’s ability not exceed 6 hours, and occur not more than once every 3 months.
The Supplier is responsible for procuring all Underlying Systems reasonably required for it to provide the SaaS Service in accordance with the Agreement.
The Client and its personnel must:
When accessing the SaaS Service, the Client and its personnel must:
The Supplier is responsible for procuring all licences, authorisations and consents required for the Client and its personnel to use the Services.
The Client agrees to keep a separate back-up copy of all Data uploaded by it onto the SaaS Service.
The Client must pay to the Supplier the Fees being the Fixed monthly Fee and Volume fee if any as set forth in Exhibit A – “TIM pricelist”
The Supplier may charge interest on overdue amounts, automatically and without prior written notice of breach. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to 10%
By at least 30 days’ notice, the Supplier may increase the Fees once each Year (but not the first two Years) by the percentage change in the Belgian Consumer Price Index over the 12 months preceding the last quarterly publication of that index. Fees updated under this clause are deemed to be the Fees listed in the Key Details.
If the Client provides the Supplier with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
The Client acknowledges that the SaaS Service may link to third party websites or feeds (for example weather services) that are connected or relevant to the SaaS Service. Any link from the SaaS Service does not imply any Supplier endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, the Supplier excludes all responsibility or liability for those websites or feeds.
Each party must, unless it has the prior written consent of the other party:
The obligation of confidentiality in clause a does not apply to any disclosure or use of Confidential Information:
the confidentiality obligations set out in this clause 7, shall survive termination or expiry of the Agreement for whatever reason and shall remain in force for a period of 5 years from the date of termination or expiry of the Agreement.
In the case of a breach of any of the covenants set out in Clause 7, the breaching party shall compensate the other party, automatically and without prior written notice of breach, a fixed amount of ____ euros (€____) for each breach, without prejudice to the right of the other party to claim recuperation for any additional amount if its damages exceed the fixed amount and without prejudice to that party’s right to claim other remedies under the applicable laws.
Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.
The maximum aggregate liability of the Supplier under or in connection with the Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by the Client under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Client from the Start Date to the date of the first event giving rise to liability).
Neither party is liable to the other under or in connection with the Agreement or the Services for any:
Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.
Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.
Without prejudice to the other provisions of this Agreement, the Client shall immediately and fully indemnify the Supplier and hold the Supplier harmless (on a euro for euro basis) against any and all claims or proceedings brought against the Supplier by any third party or any damage incurred by the Supplier which arises from or in connection with:
Unless terminated under this clause 10, the Agreement:
“Unless otherwise agreed in the Key Details, either party may terminate the Agreement after the first anniversary of the Start Date, by giving a 3 months’ prior written notice to the other party, sent by registered letter.”
To avoid doubt, the Supplier is not required to comply with clause i to the extent that the Client previously requested deletion of the Data.
Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 6, 7, 9, 10.4, 10.5 and 11, continue in force.
Without limiting any other right or remedy available to the Supplier, the Supplier may restrict the Client’s access to the SaaS Service where the Client (including any of its personnel):
The Supplier must notify the Client where it restricts or suspends the Client’s access under clause 10.6.
Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.
This clause 11 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:
No person other than the Supplier and the Client has any right to a benefit under, or to enforce, the Agreement.
To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party. No failure or delay by a Party in exercising any rights, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise preclude any other or further exercise of any right, power or privilege under this Agreement.
the Supplier is an independent contractor of the Client, and no other relationship (e.g. joint venture, agency, employment, trust or partnership) exists under the Agreement.
A notice given by a party under the Agreement must be delivered to the other party via email using the email address set out in the Key Details or otherwise notified by the other party for this purpose. If the notice is a notice of termination, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address.
Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement. If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be replaced with another provision consistent with the purpose and intent of this Agreement.
Any variation to the Agreement must be in writing and signed by both parties.
The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date.
Unless otherwise provided under Section A, the Client may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of the Supplier, that consent not to be unreasonably withheld. The Client remains jointly and severally liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
This Agreement shall be governed by and construed in accordance with the Belgian law and each of the Parties irrevocably agrees that the Dutch speaking courts of Brussels have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement.
The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Agreement by signing and emailing a counterpart copy to the other party.