Moticheck SaaS Agreement Terms and Conditions
Updated in October 2024
PARTIES
1 Moticheck (Supplier)
2 Customer
SECTION A: AGREEMENT AND KEY DETAILS
AGREEMENT
The Supplier agrees to provide, and the Customer agrees to use, the Moticheck One Software as a Service (SaaS) and Related Services in accordance with this Agreement. The Agreement consists of:
- Section A: Agreement and Key Details
- Section B: General Terms
- Section C: Annexes and Attachments
KEY DETAILS
Start Date: Stated in the Agreement
End Date: As per Section B, Clause 10
SaaS Service: A software solution for continuous employee experience screening and ad hoc surveys relating to work-life experiences, analyses of the results, and leadership development.
SaaS Service Fee: Stated on https://moticheck.com/plans-and-pricing/
End of the Section A
SECTION B: GENERAL TERMS
- INTERPRETATION
- In this Agreement:
- Confidential Information: Any non-public information obtained during the Agreement.
- Data: All data (including Personal Information) created, stored, or processed by the Customer using the Services.
- Personal Information: As defined by the General Data Protection Regulation (GDPR) (EU 2016/679) and specified in the Suppliers’ Data Protection Agreement moticheck.com/dpa.
- Services: The SaaS Service and Related Services as described in Section A.
- User: Personnel of the Customer authorized to use the SaaS Service.
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- SERVICES
- General
The Supplier will provide the SaaS Service with reasonable care, and skill, and in compliance with the Agreement and applicable laws. The service is non-exclusive, and the Supplier may provide services to other customers.
- Availability
The Supplier will strive to ensure 24/7 availability of the SaaS Service, except during maintenance or Force Majeure events.
- CUSTOMER OBLIGATIONS
- General Use
The Customer must use the Services for internal business purposes only, in compliance with this Agreement, and not resell or make them available to third parties.
- Access Conditions
The Customer will ensure Users comply with all access conditions, including avoiding unauthorized access and maintaining data security.
- Users
Only Users authorized by the Customer may access the Services. A breach by any User will be deemed a breach by the Customer.
- DATA
- Supplier Access to Data
The Customer acknowledges that the Supplier may access Data to fulfill its obligations under this Agreement. Supplier applies necessary means including technology to restrict and log the access to data.
- Personal Data.
The Customer acknowledges and agrees that to the extent Data contains Personal Information of Users and Customer, in collecting, holding, and processing that information through the Services, the Supplier is acting as a processor of the Customer according to the General Data Protection Regulation (EU) 2016/679 and any other applicable privacy law.
- Analytical Data
Analytical Data is the property of the Supplier and includes data relevant to the Service’s usage. Data that is collected, aggregated, or generated by the Supplier in the course of providing the SaaS Service is masked or anonymized to the extent reasonable to ensure that no third party can identify the Customer or Users.
- Data Processing
- Data processing will be governed by the Supplier’s Data Protection Agreement (DPA), available at moticheck.com/dpa, which details the processing of Personal Information, including the involvement of sub-processors.
- The Customer agrees that Data may be stored in secure servers within the European Union and accessed from other territories where Suppliers’ personnel or Users are located.
- FEES
- Fees
The Customer commits to pay the SaaS Service fees as outlined in Section A.
- Invoicing and Payment
Invoices will be issued monthly in arrears. Payments must be made within 7 days of invoice receipt.
- Overdue Amounts
The Supplier may charge interest on overdue amounts at a rate of 0.022% per day.
- Fee Increases
The Supplier may increase Fees with 30 days’ notice once per year. If the Customer disagrees with the increase, they may terminate the Agreement with 10 days’ notice before the increase takes effect.
- INTELLECTUAL PROPERTY
- Ownership
All Intellectual Property Rights in the SaaS Service, Website, and Underlying Systems are owned by the Supplier.
- Feedback
Any feedback provided by the Customer or User will become the intellectual property of the Supplier and may be used for service improvement or other purposes.
- Third-Party Intellectual Property Rights Indemnity
The Supplier will indemnify the Customer against any third-party claims that the Customer’s use of the SaaS Service infringes on intellectual property rights, provided the Customer:
- Notifies the Supplier promptly of any claims
- Does not admit liability or settle without the Supplier’s written consent
- Cooperates fully with the Supplier to manage or resolve the claim
- If an IP claim is made, the Supplier may, at its discretion:
- Secure the right for the Customer to continue using the services
- Modify or replace the infringing elements
- CONFIDENTIALITY
- Confidentiality Obligations
Each party agrees to:
- Keep the other party’s Confidential Information secure
- Disclose it only to personnel who need access to fulfill the Agreement and ensure they are bound by confidentiality obligations
- Not use or disclose Confidential Information except as required by law or to perform the Agreement
- Permitted Disclosure
Confidential Information may be disclosed if:
- Required by law
- It becomes public knowledge through no fault of the receiving party
- WARRANTIES
- Mutual Warranties
Both parties warrant they have the authority to enter into this Agreement.
- Supplier Warranties
The Supplier will use reasonable efforts to ensure the SaaS Service:
- Meets the Customer’s requirements
- Is secure, free from viruses, and operates without interruptions or errors
- No Implied Warranties
Except for the warranties explicitly stated in the Agreement, the Supplier provides the SaaS Service “as is” and disclaims all implied warranties, including fitness for a particular purpose.
- LIABILITY
- Maximum Liability
The Supplier’s total liability for any claims under or related to this Agreement will not exceed the total Fees paid by the Customer in the 18 months preceding the claim (or the total Fees paid during the term if less than 18 months).
- Unlimited Liability
The limitation in clause 9.1 does not apply to:
- The Supplier’s indemnity obligations for intellectual property infringement
- Fraud, gross negligence, or willful misconduct
- Limited Liability
Neither party will be liable for failure to perform obligations due to Force Majeure or the other party’s failure to comply with its obligations.
- Mitigation
Both parties agree to take reasonable steps to mitigate any loss or damage arising under this Agreement.
- TERM AND TERMINATION
- Term
This Agreement begins on the Start Date and continues until terminated in accordance with this clause.
- Termination by Notice
Either party may terminate the Agreement by giving 30 days’ written notice.
- Termination for Breach
Either party may terminate the Agreement immediately if the other party:
- Commits a material breach and fails to remedy it within 10 days of notice
- Becomes insolvent, bankrupt, or ceases business operations
- Consequences of Termination
- Upon termination, the Customer must pay all outstanding Fees and either return or delete all Confidential Information of the Supplier.
- Upon termination, the Supplier must either return or delete, mask, or anonymize all Confidential Information of the Customer.
- Suspension
The Supplier may suspend the Customer’s access to the SaaS Service if the Customer:
- Attempts to undermine the SaaS Service’s security
- Uses the service for improper purposes
- Breaches intellectual property or privacy rights
- The Supplier will notify the Customer in the event of such suspension.
- Dispute Resolution
- Before resorting to legal action, both parties must attempt to resolve disputes through good-faith negotiations.
- Continuation of Services
Each party must continue performing its obligations under the Agreement while the dispute is being resolved, to the extent practicable.
- GENERAL PROVISIONS
- Force Majeure
Neither party will be liable for failure to perform due to Force Majeure, provided they notify the other party and use reasonable efforts to overcome the event.
- Rights of Third Parties
Only the Supplier and the Customer have rights under this Agreement; third parties cannot enforce any provisions.
- Waiver
Waivers must be in writing and signed by the waiving party.
- Notices
Notices under this Agreement must be delivered via email to the contact details provided in Section A.
- Severability
If any provision of this Agreement is found to be illegal or unenforceable, it will be modified to the extent necessary to remedy the issue, and the remainder of the Agreement will remain in effect.
- Entire Agreement
This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, discussions, and communications.
- Law and Jurisdiction
This Agreement is governed by Estonian law, and any disputes will be subject to the non-exclusive jurisdiction of the courts of Estonia.
End of the Section B