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Global SaaS agreement

SOFTWARE LICENSE AND SERVICE AGREEMENT

TERMS AND CONDITIONS

These Terms and Conditions, together with the Service Levels & IT Security Controls Policy, the GDPR Provisions, the fully executed Order Form and any Statements of Work, shall constitute the Software License and Service Agreement (this “Agreement”), between the Licensee (as identified on the Order Form or Statement of Work as appropriate) (“Licensee”) and HighQ (as identified on the Order Form or Statement of Work as appropriate), each a “party” and together the “parties”.

The Effective Date of this Agreement is the date set forth on the Order Form or a Statement of Work. Any additional Order Forms or Statement of Work executed after the Effective date shall be incorporated herein by reference and governed by this Agreement. The Licensee is responsible for reviewing this Agreement prior to executing an Order Form or Statement of Work.  By executing an Order Form or Statement of Work, or accessing or using the Services, the Licensee confirms that it accepts the terms and conditions of this Agreement.

The rights and obligations of the parties set out in any executed Order Form or Statement of Work shall be governed by this Agreement. In the event of any inconsistency between a provision of any Order Form or Statement of Work and a provision of this Agreement, the provision of the relevant Order Form or Statement of Work shall prevail solely with respect to resolving any conflict. For the avoidance of doubt, the order of precedence shall be: (1) the Order Form, (2) this Agreement (3) Statement of Work, and (4) the Documentation.

1.     Definitions.

1.1     “Affiliate” means with respect to any entity, an entity who directly or indirectly, has the power to Control, whether through ownership of (a) more than fifty percent of the voting equity or (b) more than fifty percent of an interest in a joint venture in which either parties Control over the joint venture is set forth in writing, and in each case, for as long as such Control exists. “Control” and its correlative terms means, with respect to any entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entities, whether through ownership of voting securities, as trustee or executor, as general partner or managing member, by contract or otherwise.

1.2     “Applicable Laws” means any and all applicable federal, state, local and foreign laws, statutes, ordinances, rules, regulations and directives of any applicable jurisdiction.

1.3      “Authorized Users” mean the named employees of, and authorized individuals who provide services to, Licensee and its Permitted Affiliates to whom Licensee has provided a log in identification to access the Licensed Software on behalf of Licensee; provided that the maximum number of Authorized Users is set forth on the Order Form.

1.4     “Confidential Information” is defined in Section 7.1.

1.5     “Designated External Users” mean the individuals invited by Authorized Users to access the Licensed Software in accordance with the permission granted by the Authorized Users, which permission may not be greater than those held by such Authorized Users; provided that the maximum number of Designated External Users is set forth on the Order Form.

1.6     “Documentation” means the instructional, operating or user manuals that HighQ provides to Licensee in any form, including electronic, printed and diskette, relating to the operation of the Licensed Software.

1.7     “Fees” is defined in Section 4.1.

1.8     “Force Majeure” means any cause beyond a party’s control, as a result of which such party is unable to perform its obligations under this Agreement. Such causes include but are not limited to acts of God, labor conflicts, acts of war or civil disruption, governmental regulations imposed after the fact, public utility failures, industry-wide shortages of labor or material, or natural disasters.

1.9     “HighQ Personnel” means employees and subcontractors of HighQ as well as third party vendors that provide services, such as hosting, to HighQ.

1.10   “Hosted Services” is defined in Section 3.1.

1.11   “Hosting Location” is identified on the Order Form.

1.12   “Indemnified Parties” is defined in Section 10.1.

1.13   “Initial Term” is defined in Section 5.1.

1.14   “License Fee” is defined in Section 4.1(a).

1.15   “Licensed Software” are the software products identified on the Order Form as being licensed hereunder.

1.16   “Licensee Data” is defined in Section 8.1.

1.17   “Modified Software” means any software products derived from the Licensed Software or developed by HighQ at the request of Licensee pursuant to a Statement of Work or otherwise to operate in conjunction with, or improve the operational functionality or use of, the Licensed Software.

1.18   “Order Form” is the portion of this Agreement that is executed by both parties and identifies the Licensed Software, the Term, Hosting Location, Fees and other agreed upon terms of this Agreement.

1.19    “Permitted Affiliate” means any current or future Affiliate of Licensee for as long as such entity constitutes an Affiliate as defined herein.

1.20    “Process” means to perform any operation or set of operations on any data, information, material, work, expression or other content, including to (a) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other improvements or derivative works, (b) process, retrieve, output, consult, use, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or (c) block, erase or destroy. “Processing” and “Processed” have correlative meanings.

1.21    “Professional Services Fees” as defined in a Statement of Work and agreed by both parties.

1.22   “Renewal Term” is defined in Section 5.1.

1.23   “Service Levels” is defined in Section 3.2.

1.24   “Services” is defined in Section 3.1.

1.25   “Statement of Work” if applicable, is the portion of this Agreement that is executed by both parties and identifies the Professional Services and other agreed upon terms of this Agreement.

1.26    “Subcontractor” is defined in Section 11.10.

1.27   “Term” is defined in Section 5.1.

2.     License Grant and Restrictions.

2.1     Grant. HighQ hereby grants to Licensee, exercisable by and through the Authorized Users, a non-exclusive, royalty-free, irrevocable, non-transferable and non-sublicensable (except, in each case, as provided herein), right and license during the Term, to: (a) access and use the Licensed Software; (b) generate, print, copy, upload, download, store and otherwise Process all Licensee Data; (c) prepare, reproduce, print, download and use the Documentation, all in accordance with the limitations set forth on the Order Form or Statement of Work (e.g., usage, amount of storage, number of Authorized Users, number of instances) and (d) exercise the rights set forth in Section 2.3 below.

2.2     Restrictions. Licensee shall not: (a) rent, lease, lend, sell, or otherwise make the Licensed Software available to any third party, except as expressly permitted by this Agreement or (b) use or authorize the use of the Licensed Software, the Services or Documentation in any manner not permitted hereby or for any purpose that is unlawful under applicable law and always subject to Clause 6.2.

2.3     Authorized Users. Licensee may designate Authorized Users as having “administrator status” with respect to the Licensed Software. Only those Authorized Users designated with ‘administrator status’ may contact HighQ directly with support questions. Authorized Users may permit Designated External Users to access and use the Licensed Software. Designated External Users may only access the Licensed Software for as long as such permission is granted by the Authorized User and shall be subject to the same restrictions applicable to Authorized Users. Designated External Users may not exercise any rights granted to Licensee, its Permitted Affiliates or the Authorized Users other than the right of access to and use of the Licensed Software. Licensee and its Permitted Affiliates shall be responsible for Authorized Users and Designated External Users’ compliance with the terms hereof.

3.     Scope of Services.

3.1     General. During the Term, HighQ shall, in accordance with all Terms and Conditions set forth in this Agreement, provide to Licensee and its Permitted Affiliates: (a) all necessary hosting, maintenance and support of the Licensed Software in order to provide remote electronic access and use of the Licensed Software by the Licensee, its Permitted Affiliates, the Authorized Users and Designated External Users (“Hosted Services”); and (b) if applicable, any such other products and professional services mutually agreed to by the parties and set forth in a Statement of Work executed by both parties (“Professional Services” and together with the Hosted Services, the “Services”). HighQ shall perform the Services: (a) in accordance with: (i) this Agreement, (ii) the Service Levels, (iii) good industry practice, and (iv) with all Applicable Laws, and (b) with reasonable skill and care.

3.2     Hosted Services. The Hosted Services include HighQ’s agreement to host, serve, support and enable the availability of the Licensed Software in accordance with this Agreement, including the service level criteria, requirements and performance metrics as set forth on Service Levels and IT Controls Policy, which may be updated by HighQ from time to time (“Service Levels”). HighQ will not relocate the Hosting Location without the consent of Licensee which consent shall not be unreasonably withheld. The Hosted Services shall also include the provision of information processing, communications, networking and other resources, facilities, equipment, operating environments and services required for Licensee’s access to and use of the Licensed Software in accordance with this Agreement.

4.     Fees and Expenses.

4.1     Fees. In full consideration of the Services provided and the rights granted hereunder, Licensee shall pay HighQ the fees described herein and as set forth on the Order Form (“Fees”). Licensee shall also pay reimbursable expenses expressly specified in an applicable Statement of Work.

(a)    The annual license fee will entitle Licensee to (i) a certain usage limit (e.g. prescribed amount of data storage, a prescribed number of Authorized Users), plus (ii) any modules, add on features and volume metrics selected by Licensee as set forth on an Order Form (collectively, the “License Fee”). In addition to the License Fee, Licensee will pay the One Time Setup Fee set forth on the Order Form on the Effective Date. Fees are not refundable (except as otherwise expressly provided in Section 5.5 and Section 10.1 below).

(b)    The License Fee is not subject to change except as provided herein and in the applicable Order Form. If, at any time during the Term, Licensee exceeds the usage limits set forth in the Order Form, additional fees will be payable by Licensee to HighQ, according to the pricing schedule set forth on the Order Form. Increased usage limits may be acquired only in prescribed increments as set forth on the Order Form.

(c)    If Licensee requests additional modules, add on features or volume metrics, Licensee and HighQ will execute an Order Form and Licensee will pay the amounts set forth thereon.

(d)    At the commencement of each Renewal Term, HighQ may increase the Fees by an amount not to exceed 7% per year. HighQ shall notify Licensee of any such increases at least 30 days in advance of each anniversary of the Effective Date.

(e)    Professional Services Fees, as applicable, shall be as set forth in a Statement of Work (if any).

4.2     Invoices and Payment Terms. License Fees are payable annually in advance, the One Time Setup fee referenced in Section 4.1 (a) above is payable upon the Effective Date and Professional Services Fees, as applicable, are payable monthly in arrears unless otherwise stated on the applicable Order Form or Statement of Work. Invoices, except for amounts disputed by Licensee, shall be payable within 30 days of receipt. Fees shall be deemed undisputed unless Licensee notifies HighQ in writing within 30 days of receipt of the applicable invoice, describing in reasonable detail the nature of the dispute, pays all undisputed amounts timely and cooperates in good faith to resolve such dispute as promptly as practical. If any undisputed amount is unpaid by more than 30 days, Licensee may be subject to a finance charge payable to HighQ of the lesser of 4% above the Bank of England’s base rate or the maximum rate allowable per applicable law on all such past due amounts. HighQ shall have no obligation to provide Services if and for so long as any undisputed fee is delinquent, provided that HighQ gives Licensee not less than 30 days written notice of its intention to suspend such Services if the undisputed amount is not cured.

4.3     Payment and Collection of Applicable Taxes. All fees set forth in this Agreement are exclusive of applicable taxes and duties, including VAT, GST and/or applicable sales or use tax. Licensee will provide HighQ with any information HighQ may reasonably request in order to determine whether HighQ is obligated to collect VAT, GST, sales or use tax from Licensee, including Licensee’s VAT, GST or taxpayer identification number. If Licensee is legally entitled to an exemption from any sales, use, or similar transaction tax, Licensee is responsible for providing HighQ with legally sufficient tax exemption certificates or other comparable documentation for each taxing jurisdiction. HighQ will apply the tax exemption certificates or other documents to charges under Licensee’s account occurring after the date HighQ receives the tax exemption certificates or other comparable documents, and shall have no obligation to recognize any tax exemption for any period before it received a tax exemption certificate or other comparable document. If HighQ is required by law to collect any taxes, HighQ will invoice Licensee and Licensee will pay HighQ any additional amounts necessary to ensure that the net amount that HighQ receives, after payment of any taxes, equals the amount HighQ would have received if no tax had been required.

5.     Term and Termination.

5.1     Term. The initial term of this Agreement will commence as of the Effective Date and will continue for a three year period as set forth on the Order Form (the “Initial Term”), and shall renew thereafter for consecutive annual periods (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either party provides not less than 60 days prior written notice of its desire not to renew in which event the Term shall expire at the conclusion of the Initial Term or Renewal Term, as the case may be, unless otherwise terminated as provided under this Agreement. For the avoidance of doubt, the Term of any Statements of Work shall be agreed between the parties as set forth in the Statements of Work.

5.2     Early Termination. Either party may terminate this Agreement, by written notice to the other party effective as of the date specified in such notice, if the other party commits a material breach of this Agreement and such breach remains uncured 30 days after the breaching party received written notice thereof.

5.3     Termination for Insolvency. Either party may terminate this Agreement, upon written notice to the other party, (a) if the other party applies for, or consents to, the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (b) upon the other party ceasing to conduct business, becoming or being declared by a federal bankruptcy court or any other court of competent jurisdiction to be insolvent or bankrupt, or being the subject of any proceeding under the federal bankruptcy code or under any other law relating to relief from creditors generally that is not dismissed within sixty (60) days; (c) upon the appointment of, or application for, a receiver, custodian, trustee or liquidator of the other party or all or any substantial portion of the other party’s business or operations; (d) upon the assignment of all or substantially all the assets of the other party for the benefit of creditors; or (e) upon the other party’s liquidation, dissolution or winding-up.

5.4     Termination for Force Majeure. If any Force Majeure event relied upon by either party shall have been continually relied upon for more than 60 successive days by such party, and is continuing, the other party shall be entitled to terminate this Agreement immediately upon written notice to the other party.

5.5     Effect of Termination. Upon and after the termination or expiration of this Agreement for any or no reason: (a) all licenses granted hereunder will immediately terminate and the respective parties shall cease all activities hereunder; (b) if the termination is due to a breach by HighQ, then HighQ shall refund, on a pro-rata basis, all fees, expenses and other amounts paid in advance for any Services that HighQ has not provided as of the effective date of such expiration or termination, as applicable; (c) Licensee shall pay all amounts due upon such effective date of termination, (d) Licensee shall uninstall and return any Licensed Software products that have been installed at Licensee’s site and, in all cases, comply with HighQ’s instructions as to disabling access to the Licensed Software and (e) Licensee shall have not more than 15 days after the effective date of termination to access the Licensed Software for the sole purpose of downloading and exporting any Licensee Data and for no other purpose.

6.     Ownership and Intellectual Property Rights.

6.1     Ownership. Licensee acknowledges and agrees that HighQ, alone and together with its Affiliates, own the entire right, title and interest in and to the Licensed Software, Modified Software, if any, and Documentation and all portions thereof, including all derivatives thereof, together with all proprietary rights relating thereto, including all copyrights, patent and trade secret rights, as well as changes or enhancements thereto. Licensee further acknowledges that the right, title and interest in any third party software products embedded in the Licensed Software or identified on an Order Form or Statement of Work, reside with the licensors thereof. Licensee will not challenge the ownership or rights in the Licensed Software or any such third party software products. Any licensors of HighQ shall be deemed third party beneficiaries solely with respect to the license grant and restrictions applicable to their proprietary products. HighQ reserves all rights not expressly granted herein. Licensee shall undertake no action that will interfere with or diminish the right, title or interest of HighQ or its Affiliates in their trademarks or tradenames or any of their rights under patent, trademark or copyright laws.

6.2     Restrictions. Without limiting the foregoing, the Licensed Software may not be used (a) in a manner that would substitute for a license or purchase of any portion of the Licensed Software by a third party, (b) for service bureau activities, (c) for any resell activities by the Licensee, or (d) for the purpose of designing, developing, modifying, or improving third party software or products. Licensee may not, and may not permit any of its Affiliates, Authorized Users or Designated External Users to: (i) sell, resell, license, sublicense, rent, lease, lend, transfer or distribute copies of the Licensed Software to, or otherwise permit use or access by, any third party or use such Licensed Software to provide any paid or unpaid services on an outsourced basis or otherwise to any third party; (ii) cause or permit the reverse engineering, translation, disassembly or decompilation of the Licensed Software or otherwise attempt to derive source code or the underlying ideas, algorithms, structure or organization from the Licensed Software or any part thereof; (iii) hide, remove, tamper, amend, alter, obscure or in any manner interfere with any proprietary rights notices contained on or within the Licensed Software or Documentation; or (iv) remove, modify or alter any copyright, trademark or patent notice from any part of the Licensed Software, Documentation or any materials made available by or on behalf of HighQ.

7.     Confidentiality and Information Security Requirements.

7.1     Non-Disclosure. Each party agrees to regard and preserve as confidential all information related to the business and activities of the other party or such party’s clients or vendors, which may be obtained by such party from any source or may be developed as a result of this Agreement, including financial and business information, strategy, trade secrets, know-how, technical information, specifications, software products and methodologies, including source code, object code and tools associated therewith, algorithms, graphics, designs, past, present and future operations, partner, client and supplier identities, and other non-public information, whether tangible, intangible, visual, electronic or otherwise, together with notes, analysis, compilations, studies and/or other documents prepared by a party, its directors, officers, employees, agents and representatives based upon, containing or otherwise reflecting such information (“Confidential Information”). For the avoidance of doubt, the parties acknowledge and agree that any and all Licensee Data shall be deemed Confidential Information of Licensee. Each party agrees to hold the Confidential Information of the other in trust and confidence and shall not disclose such information to any person, firm or enterprise, or use, directly or indirectly, any such information for its own benefit or the benefit of any other party. Even where disclosure is permitted, each party agrees to limit access to and disclosure of the other party’s Confidential Information to its employees, representatives, Authorized Users and Subcontractors on a “need to know” basis only. Notwithstanding the foregoing, either party may disclose the other party’s Confidential Information pursuant to applicable law or regulation or compulsion of proper judicial or other legal process; provided, however, if permitted by applicable law, the disclosing party shall provide prompt notice of the same prior to such required disclosure such that the other party may seek a protective order or other appropriate remedy to safeguard, restrict or limit the disclosure of such Confidential Information.

7.2     This Agreement shall supersede any confidentiality or non-disclosure agreement entered into by the parties.

7.3     Exclusions. Information shall not be considered “Confidential Information” hereunder to the extent, but only to the extent that, such information (a) is or becomes publicly available through no fault, default or breach of or by the receiving party, (b) is or was rightfully acquired by the receiving party from an independent third party without restriction or obligation of confidentiality and without breach of any agreement or obligation or (c) is or was independently developed by the receiving party without use of Confidential Information of the other party.

7.4     Recipients and Equitable Relief. Each party shall, in advance, by agreement, instruction or otherwise, ensure that each individual who obtains or is in a position to obtain Confidential Information of the other party, understands and has agreed to comply with the obligations in this Section 7. Further, in the event of a breach or threatened breach of either party’s obligations in this Section 7, the other party will suffer immediate and irreparable harm for which money damages may be difficult to calculate or provide inadequate compensation. Accordingly, each party will be entitled to seek an injunction, restraining order or other equitable relief to enforce compliance with the provisions of this Section 7; provided, however, that no specification herein of any particular legal or equitable remedy shall be deemed or construed to prohibit either party from seeking or obtaining any other remedy under this Agreement.

7.5     Information Security Requirements. The parties hereby agree to comply with the standard information security requirements, and procedures described on the Service Levels and IT Security Controls Policy, which may be updated by HighQ from time to time.

8.     Licensee Data and General Data Protection Provisions.

8.1     Scope. For purposes hereof, “Licensee Data” means any and all information, data, materials, works, expressions or other content including any PII (as defined in the Service Levels and IT Security Controls Policy, that is uploaded, submitted, posted, transferred, transmitted or otherwise provided or made available by or on behalf of Licensee or any Authorized User for Processing by or through the Hosted Services. All output, copies, reproductions, improvements, modifications, adaptations, translations and other derivative works of, based on, derived from or otherwise using any Licensee Data are themselves also Licensee Data. For the avoidance of doubt, Licensee Data does not include any and all information reflecting the access to and use of the Hosted Services by or on behalf of Licensee or any Authorized User.

8.2     Ownership of Licensee Data. As between Licensee and HighQ, Licensee is and will remain the sole and exclusive owner of all right, title and interest in and to all Licensee Data, including all intellectual property and other rights relating thereto, and all Licensee Data is and will be deemed and remain the Confidential Information of Licensee. Subject to the Terms and Conditions of this Agreement, Licensee hereby grants HighQ a limited, revocable, royalty-free, fully-paid up, non-exclusive, non-transferable and non-sublicensable license to Process the Licensee Data as necessary to provide the Services for Licensee’s benefit as provided in this Agreement.

8.3     Brand License. Licensee hereby grants to HighQ a limited, revocable, non-exclusive, royalty-free and non-transferable license to use such of Licensee’s trademarks and logos solely as Licensee may request in order for the Licensed Software to be branded with Licensee’s distinguishing colors and trade dress.

8.4       General Data Protection Provisions. From 25 May 2018, the General Data Protection Regulation Provisions (“GDPR Provisions”) shall form part of this Agreement. If there is any conflict or inconsistency between the GDPR Provisions and other terms of the Agreement, the GDPR Provisions will take precedence.

9.     Representations, Warranties and Covenants.

Each party represents, warrants and covenants that: (a) it has the full right, power and authority to enter into and perform the acts required of it under this Agreement; (b) the execution and delivery of this Agreement and the performance of its obligations do not conflict with, or constitute a default under any covenant, agreement, judgment, law, order or agreement to which it is subject; (c) this Agreement constitutes the legal, valid and binding obligation of either party when executed and delivered; (d) it has obtained or shall obtain and maintain all rights, licenses, consents and authorizations necessary to perform its obligations and adhere to all of the Terms and Conditions set forth in this Agreement; and (e) either parties Personnel have the proper skill, training and background necessary to accomplish their assigned tasks, and all Services to be rendered under this Agreement shall be performed in a competent and professional and workmanlike  manner.

10.   Indemnification and Limitations.

10.1   Obligations. If any third party claim of intellectual property infringement is brought against Licensee or its Permitted Affiliates (“Indemnified Parties”) arising from the use of the Licensed Software by Licensee, its Permitted Affiliates or the Authorized Users in accordance with the terms of this Agreement, HighQ will indemnify, and defend at its own expense, Licensee from and against any and all direct costs, damages, expenses, liability, suits, claims and proceedings (including reasonable attorneys’ and professional fees) incurred by the Indemnified Party as a result of any such suit or action. HighQ’s obligations hereunder shall not apply to any modification (a) to the Licensed Software made by the Indemnified Parties or a third party not authorized by HighQ, (b) that includes intellectual property rights of Licensee or a third party not authorized by HighQ or (c) not used as authorized hereby. Licensee shall provide HighQ with prompt written notice of the suit or action for which indemnity is claimed giving HighQ sole control of the defense thereof and any related settlement negotiation; and provide all assistance, information and authority reasonably required to defend or settle the suit or action. If the Licensed Software is held, or believed by HighQ, to infringe any patent, trademark, trade secret, copyright or similar right of any third party, HighQ shall have the option, at its expense, to (a) modify the Licensed Software to be non-infringing or (b) obtain for the Indemnified Parties a license to continue using the Licensed Software, and if (a) or (b) are commercially impractical, then HighQ may terminate this Agreement and refund the License Fee paid by Licensee for the year in which the Agreement is terminated. The foregoing sets forth HighQ’s sole and exclusive obligation and Licensee’s sole and exclusive remedy with respect to any infringement issues.

10.2   Licensee will indemnify, and defend at its own expense, HighQ from and against any and all direct costs, damages, expenses, liability, suits, claims and proceedings (including reasonable attorneys’ and professional fees) incurred by HighQ as a result of any such suit or action arising from or related to Licensee Data added to the Licensed Software that violates or is alleged to violate any civil or criminal law or regulation, or that infringes or is alleged to infringe any Intellectual Property Rights of any third party.

10.3   DISCLAIMER. EXCEPT AS EXPRESSLY SET FOURTH IN SECTION 9, HIGHQ HEREBY DISCLAIMS ALL REPRESENTATIONS WARRANTIES AND CONDITIONS REGARDING THE LICENSED SOFTWARE AND DOCUMENTATION WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING, USAGE OR TRADE. WITHOUT LIMITING THE FOREGOING, HIGHQ DOES NOT WARRANT THAT THE LICENSED SOFTWARE, INCLUDING THIRD PARTY SOFTWARE PRODUCTS, OR ANY MODIFIED SOFTWARE, WILL MEET THE LICENSEE’S REQUIREMENTS OR WILL OPERATE IN THE COMBINATIONS SELECTED BY LICENSEE. LICENSEE UNDERSTANDS AND AGREES THAT THE DISCLAIMER OF WARRANTIES IN THIS AGREEMENT IS A FUNDAMENTAL PART OF THE AGREEMENT AND THAT HIGHQ WOULD NOT AGREE TO ENTER THIS AGREEMENT WITHOUT SUCH DISCLAIMER.

10.4   Limitations. If the Licensee is located outside of North America the following shall apply: All exclusions and limitations in this Agreement, and any Statement of Work and/or any Order Forms shall only apply so far as permitted by law and in particular nothing shall exclude or restrict liability: (i) for death or personal injury resulting from the negligence of a party or its employees acting in the course of their employment, or its agents, acting in the furtherance of their duties, (ii) for any breach of any obligations implied by Section 2 of the Supply of Goods and Services Act 1982; (iii) to the extent prohibited by the Consumer Protection Act 1987.

10.5    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY PARTY CLAIMING THROUGH OR UNDER THE OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS DAMAGE OR CORRUPTION OF DATA OR SOFTWARE, EQUIPMENT DOWNTIME, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING, RESULTING FROM THIS AGREEMENT OR THE PERFORMANCE OR USE OF THE LICENSED SOFTWARE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY SUCH DAMAGES PAYABLE BY HIGHQ TO LICENSEE HEREUNDER EXCEED THE FEES PAID BY LICENSEE TO HIGHQ UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD PRECEDING THE CAUSE OF ACTION AT ISSUE. LICENSEE ACKNOWLEDGES AND AGREES THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL BASIS FOR THIS AGREEMENT BETWEEN THE PARTIES AND THAT IN THEIR ABSENCE THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

11.   Miscellaneous.

11.1   Assignment. Neither party may assign, transfer, convey or subcontract this Agreement, or any rights or obligations hereunder, to any other party without the other party’s prior consent (other than in connection with a merger, reorganization or sale of substantially all the assets of such assigning party) and any attempt to do so shall be null and void ab initio. This Agreement will be binding upon, and enforceable by, and will inure to the benefit of the parties hereto and their respective successors and permitted assigns.

11.2   Relationship of Parties. HighQ is an independent contractor and each party’s personnel are not employees or agents of the other party for federal, state, local or other tax purposes or any other purposes whatsoever. Personnel of one party have no authority to make representations, commitments, bind or enter into contracts on behalf of or otherwise obligate the other party in any manner whatsoever. Nothing in this Agreement will be construed or deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership, business entity of any kind, or constitute one party an agent of the other party.

11.3   Notices. All notices and other communications required or permitted under this Agreement must be in writing and delivered personally, mailed via first class mail, postage prepaid, via an internationally recognized overnight courier, or via email (with confirmation of receipt) to the applicable party at the address provided , unless, by notice, a party changes or supplements address for giving notice. All notices will be deemed given on the date personally delivered or when placed in the mail as specified. All notices to HighQ should be sent by mail to  55 King William Street ,London, EC4R 9AD and by  email to: legal@highq.com.

11.4     Publicity. HighQ shall be entitled to use the name, service or trademarks, logos or otherwise identify or refer to Licensee in any press releases, publications, reports, studies, publicity, marketing or promotional material.

11.5    Interpretation; Construction. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. The terms “include,” “includes,” and “including,” whether or not capitalized, mean “include, but are not limited to,” “includes, but is not limited to,” and “including, but not limited to,” respectively and are to be construed as inclusive, not exclusive. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

11.6     Modification; Waiver; Severability. HighQ may modify the terms of this Agreement at any time by posting a revised version on this website. The modified terms will become effective upon posting. By continuing to use the Services after the date of modifications to this Agreement, the Licensee agrees to be bound by the modified terms. The last modified date is stated at the end of this Agreement. No failure or delay by either party to exercise any right or enforce any obligation will impair or be construed as a waiver or on-going waiver of that or any or other right or power, unless made in writing and signed by both parties. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining provisions of this Agreement will be unimpaired and remain in full force and effect.

11.7   Survival. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive shall survive the cancellation, expiration or termination of this Agreement.

11.8   Entire Agreement. This Agreement, together with the Order Form, and Statements of Work, if any which are incorporated herein by this reference, constitutes the entire agreement between the parties and supersedes any prior or inconsistent agreements, negotiations, representations and promises, written or oral with respect to the subject matter hereof.

11.9   Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed a single instrument. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission (to which a signed PDF copy is attached) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

11.10   Subcontracting. Licensee acknowledges that in the course of performing its obligations hereunder, HighQ may desire or require the use of goods, services and assistance of subcontractors and other suppliers (each, a “Subcontractor”). HighQ may use Subcontractors as long as HighQ uses all commercially reasonable efforts to ensure that each Subcontractor complies with all relevant terms of this Agreement, including all provisions relating to Licensee Data or other Confidential Information of Licensee.

11.11     Force Majeure. Neither party shall be liable for any delay or failure to carry out its obligations under this Agreement caused by Force Majeure, provided that it promptly gives written notice of the occurrence of the Force Majeure relied on to the other party and it uses all reasonable endeavors to remove or avoid such Force Majeure as promptly as practicable.

11.12    Governing Law.  The Governing Law and Jurisdiction is dependent on where the Licensee is located.

(i) If the Licensee is located outside of North America (excluding Germany & Australia), the Licensee shall contract with the HighQ entity named on the Order Form and 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 claim) shall be governed by, and construed in accordance with, the domestic laws of England and Wales without giving effect to any choice of law or conflict of laws provision or rule (whether of England and Wales or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than England and Wales.   Subject to the following section, each party irrevocably submits to the sole and exclusive jurisdiction of any court sitting in England and Wales in any action or proceeding arising out or relating to this Agreement its subject matter or formation (including non-contractual disputes or claims) and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court.  The Provisions of the United Nations Conventions on Contracts for the International Sale of Goods of 1980 shall not apply to this Agreement.

(ii) If the Licensee is located within North America, the Licensee shall contract with the HighQ entity named on the Order Form and 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 claim) shall be governed by, and construed in accordance with, the domestic laws of the State of New York without giving effect to any choice of law or conflict of laws provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than State of New York.   Subject to the following section, each party irrevocably submits to the sole and exclusive jurisdiction of any court sitting in New York in any action or proceeding arising out or relating to this Agreement its subject matter or formation (including non-contractual disputes or claims) and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court.  The Provisions of the United Nations Conventions on Contracts for the International Sale of Goods of 1980 shall not apply to this Agreement.

(iii) If the Licensee is located within Germany, the Licensee shall contract with the HighQ entity named on the Order Form and this Agreement shall be governed by, and construed in accordance with, the laws of the Federal Republic of Germany without giving effect to any choice of law or conflict of laws provision or rule (whether of Germany or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the Federal Republic of Germany. Subject to the following section, each party irrevocably submits to the sole and exclusive jurisdiction of any court sitting in Germany in any action or proceeding arising out or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court. The Provisions of the United Nations Conventions on Contracts for the International Sale of Goods of 1980 shall not apply to this Agreement.

(iv) If the Licensee is located within Australia, the Licensee shall contract with the HighQ entity named on the Order Form and this Agreement shall be governed by, and construed in accordance with, the domestic laws of Australia without giving effect to any choice of law or conflict of laws provision or rule (whether of Australia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than Australia.   Subject to the following section, each party irrevocably submits to the sole and exclusive jurisdiction of any court sitting in New South Wales, Australia in any action or proceeding arising out or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court.  The Provisions of the United Nations Conventions on Contracts for the International Sale of Goods of 1980 shall not apply to this Agreement.

11.13   Dispute Resolution. Any claim or controversy related to or arising out of this Agreement, whether in contract or in tort, other than matters pertaining to proprietary information, proprietary rights, or payment disputes (“Dispute“), will be resolved according to the following process, which either Party may start by delivering a written notice to the other Party describing the Dispute and the amount involved (“Demand“). If the Dispute remains unresolved after ten 10 business days after receipt of a Demand, each Party shall identify a designated representative and a senior manager in writing to the other Party, and the designated representatives from each Party will meet at a mutually agreed upon time and place and use commercially reasonable efforts to try to resolve the Dispute. If the Dispute remains unresolved for 10 business days after such meeting, either Party may escalate the Dispute by sending notice to the other Party’s senior manager. If the senior managers from both Parties cannot resolve the Dispute within 10 business days after receipt of such written notice, either Party may pursue any other available remedies. The Parties shall use commercially reasonable efforts to attempt to settle any claim or controversy between themselves (acting in good faith) within 1 calendar month of notice of the claim or controversy being given.  The Parties shall conduct such negotiation on a confidential basis.

Last Updated 22 December 2017