Moticheck SaaS agreement terms and conditions
Last update: May 2022
1 Moticheck (Supplier)
SECTION A: AGREEMENT AND KEY DETAILS
The Supplier agrees to provide, and the Customer agrees to buy, the Moticheck One Software as a Service, and Related Services, on the Terms of the Agreement. The Agreement comprises:
- Section A (Agreement and Key Details, including this cover page and the signature clauses);
- Section B (General Terms); and
- Section C (Annexes, Amendments, and Attachments)
Start Date Month dd, yyyy
End Date Upon notice according to clause 10
The SaaS Service is a software used for performing continuous employee experience screening and ad hoc surveys associated with employee work life.
SaaS Service Fee
The SaaS Service Fee is calculated each month based on the number of Moticheck One users in the companies belonging to the same group as the Customer. The Fee amount per user is EUR 5. Deviations and additional terms are specified in Section C.
Related Services Fee
Custom IT developments, additional custom features, configurations, and consultations not covered by the SaaS Service are priced at EUR 75 per hour.
AGREEMENT MAINTENANCE CONTACTS:
Supplier contacts are available on the website moticheck.com
Email addresses for notice Supplier
End of the section A
SECTION B: GENERAL TERMS
- Definitions: In the Agreement, the following terms have the stated meaning:
|Moticheck One Software||the software owned by the Supplier (and its licensors) that is used to provide the SaaS Service.|
|Agreement||Section A (Agreement and Key Details, including the cover page and signature clauses), Section B (General Terms), and Section C (Annexes, Amendments, and Attachments)|
|API||Application Programming Interface is a set of programming codes that enables data transmission between one software product and another.|
|Confidential Information||the Terms of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or connection with, the Agreement. The Supplier’s Confidential Information includes Intellectual Property owned by the Supplier (or its licensors), including the Moticheck One Software. The Customer’s Confidential Information includes the Data processed in Moticheck One including personal data of Customers employees.|
|Data||all data, content, and information (including Personal Information) owned, held, used, or created by or on behalf of the Customer that is stored using, or inputted into, the Services.|
|Personal Information||has the meaning given in the General Data Protection Regulation (EU) 2016/679.|
|Analytical data||is data created and used by the Supplier to develop and market the service. Analytical data is prepared in a way that does not allow third-parties to identify the Customer or the User.|
|End Date||the end date is set out in the Key Details.|
|Fees||the fees set out in the Key Details, as updated from time to time by clause 5.4|
|Force Majeure||an event that is beyond the reasonable control of a party, excluding:
|Intellectual Property Rights||includes copyright and all rights existing anywhere in the world conferred under statute, common law, or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning and includes any enhancement, modification, or derivative work of the Intellectual Property.|
|Key Details||the Agreement-specific details are set out in Section A of the Agreement.|
|Objectionable||includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.|
|Payment Terms||The payment terms are set out in the Key Details (if any).|
|Users||those personnel of the Customer who is authorized to access and use the Services on the Customer’s behalf by clause 3.3|
|Related Services||any related service described in the Key Details and any further services that the Supplier agrees to provide to the Customer under the Agreement.|
|SaaS Service||the service has the core functionality described in the Key Details. The SaaS Service is described in more detail on the Website, as the Website is updated from time to time.|
|Services||the SaaS Service and any Related Service set out in Section A.|
|Start Date||the start date is set out in the Key Details.|
|Trial Period||the Supplier and the Customer may agree upon special clauses to be applied during a Trial period. Such agreement is added and signed as an Annex.|
|Underlying Systems||the Moticheck One 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 Customer by the Supplier.|
|Year||12 months starting on the Start Date or the anniversary of that date.|
Interpretation: In the Agreement:
- clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
- words in the singular include the plural and vice versa;
- a reference to:
- a party to the Agreement includes that party’s permitted assigns;
- personnel include officers, employees, contractors, and agents, but a reference to the Customer’s personnel does not include the Supplier;
- a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
- including and similar words do not imply any limit; and
- a statute includes references to regulations, orders, or notices made under or in connection with the statute or regulations and all amendments, replacements, or other changes to any of them;
- no term of the Agreement is to be read against a party because the term was first proposed or drafted by that party; and
- if there is any conflict between Section B and Section A of the Agreement, Section B prevails unless expressly stated otherwise in Section A.
General: The Supplier must use reasonable efforts to provide the Services:
- by the Agreement and applicable law;
- exercising reasonable care, skill, and diligence;
- using suitably skilled, experienced, and qualified personnel; and
- using suitable technology and IT.
Non-exclusive: The Supplier’s provision of the Services to the Customer is non-exclusive. 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 during normal business hours on a 24/7 basis. 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 use reasonable efforts to notify the Customer in advance by email and in the SaaS Service environment about the details of any unavailability.
- Through the use of web services and APIs, the SaaS Service interoperates with a range of third-party service features. The Supplier does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third-party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, the Supplier may cease to make available that feature to the Customer. To avoid doubt, if the Supplier exercises its right to cease the availability of a third-party feature, the Customer is not entitled to any refund, discount, or other compensation in case the use of a feature is controlled or managed by the Customer.
- The Supplier may, from time to time, make available additional services to supplement the SaaS Service.
General use: The Customer and its personnel must:
- use the Services by the Agreement solely for:
- the Customer’s own internal business purposes; and
- lawful purposes and
- not resell or make available the Services to any third party, or otherwise commercially exploit the Services.
Access conditions: When accessing the SaaS Service, the Customer and its personnel must:
- not impersonate another person or misrepresent authorization to act on behalf of others or the Supplier;
- correctly identify the sender of all electronic transmissions;
- not attempt to undermine the security or integrity of the Underlying Systems;
- not use, or misuse, the SaaS Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service;
- not attempt to view, access, or copy any material or data other than:
- that which the Customer is authorized to access; and
- to the extent necessary for the Customer and its personnel to use the SaaS Service by the Agreement;
- neither use the SaaS Service in a manner nor transmit, input, or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect, or misleading; and
- Without limiting clause 3.2 no individual other than a User may access or use the SaaS Service.
- The Customer may authorize any member of its personnel to be a User, in which case the Customer will provide the Supplier with the User’s name (usually a personal email address on The ustomer’scustomer’s domain) and other information that the Supplier reasonably requires about the User.
- The Customer must procure each User’s compliance with clauses 3.1 and 3.2 and any other reasonable condition notified by the Supplier to the Customer.
- A breach of any term of the Agreement by the Supplier’s or Customer’s personnel (including, to avoid doubt, a User) is deemed to be a breach of the Agreement.
Authorizations: The Customer is responsible for obtaining the authorizations and consent needed to use and process the Data including Personal Information in the context of the SaaS Service.
Supplier access to Data:
The Customer acknowledges that:
- the Supplier may have access to the Data to exercise its rights and perform its obligations under the Agreement; and
- to the extent that this is necessary but subject to clause 7, the Supplier may authorize a member or members of its personnel to access the Data for this purpose.
- The Customer must arrange all consents and approvals that are necessary for the Supplier to access the Data as described in clause 4.1.1
Analytical Data: The Customer acknowledges and agrees that:
- the Supplier may:
- use Analytical Data to generate anonymous and aggregated statistical and analytical reports; and
- use Analytical Data for the Supplier’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
- supply Analytical Data to subcontractors to exercise their rights and perform their obligations under the Agreement;
- the Supplier’s rights under clause 4.2.1 above will survive termination or expiry of the Agreement; and
- title to, and all Intellectual Property Rights in, Analytical Data is and remains the Supplier’s property.
- The Customer acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding, and processing that information through the Services, the Supplier is acting as a processor of the Customer for the General Data Protection Regulation (EU) 2016/679 and any other applicable privacy law.
- The Customer must obtain all necessary consents from the relevant individual to enable the Supplier to collect, use, hold and process that information by the Agreement.
Backups of Data: While the Supplier will take standard industry measures to back up all Data stored using the Services, the Customer agrees to keep a separate backup copy of all Data uploaded by it onto the SaaS Service.
International storage of Data: The Customer agrees that the Supplier may store Data (including any Personal Information) in secure servers in European Union territory and may access that Data (including any Personal Information) in territories the Supplier or its’ employee is located.
Indemnity: The Customer indemnifies the Supplier against liability arising from the Customer’s breach of this Agreement whereby the Supplier suffers a loss (including reasonable legal fees charged by the Supplier’s solicitors). To avoid doubt, the Customer does not indemnify the Supplier from any liability, claim or cost that the Supplier is facing due to misuse of data or illegal activity.
Fees: The Customer must pay to the Supplier the Fees.
Invoicing and payment:
- The Supplier will provide the Customer with valid VAT invoices as set out in the Payment Terms, monthly in arrears for the Fees due in the previous period.
- The Customer must pay the Fees:
- within 7 days from receiving the invoice; and
- electronically in cleared funds without any set-off or deduction.
Overdue amounts: The Supplier may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at a rate 0of,022% per day.
- By giving at least 30 days’ notice, the Supplier may increase the Fees once each Year (but not the First Year). Fees updated under this clause are deemed to be the Fees listed in the Key Details.
- If the Customer does not wish to pay the increased Fees, it may terminate the Agreement on no less than 10 days’ notice, provided the notice is received by the Supplier before the effective date of the Fee increase. If the Customer does not terminate the Agreement by this clause, it is deemed to have accepted the increased Fees.
- Subject to clause 6.1., title to, and all Intellectual Property Rights in, the Services, the Website, Applications, and all Underlying Systems is and remains the property of the Supplier (and its licensors). The Customer must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
- Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains the property of the Customer. The Customer grants the Supplier a worldwide, non-exclusive, fully paid up, transferable, irrevocable license to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations by the Agreement.
Feedback: If the Customer provides the Supplier with ideas, comments, or suggestions relating to the Services or Underlying Systems (together feedback):
- all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications, or derivative works), are owned solely by the Supplier; and
- the Supplier may use or disclose the feedback for any purpose.
Third-party Intellectual Property Rights indemnity:
- The Supplier indemnifies the Customer against any claim or proceeding brought against the Customer to the extent that the claim or proceeding alleges that the Customer’s use of the SaaS Service by the Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to the Customer:
- promptly notify the Supplier in writing of the IP Claim;
- making no admission of liability and not otherwise prejudicing or settling the IP Claim, without the Supplier’s prior written consent; and
- giving the Supplier complete authority and information required for the Supplier to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for the Supplier’s account.
- The indemnity in clause 6.3.1 does not apply to the extent that an IP Claim arises from or in connection with:
- the Customer’s breach of the Agreement;
- use of the SaaS Service in a manner or for a purpose not reasonably contemplated by the Agreement or otherwise not authorized in writing by the Supplier; or
- any third-party data or any Data.
- If at any time an IP Claim is made, or in the Supplier’s reasonable opinion is likely to be made, then in defense or settlement of the IP Claim, the Supplier may (at the Supplier’s option):
- obtain for the Customer the right to continue using the items which are the subject of the IP Claim; or
- modify, re-perform, or replace the items which are the subject of the IP Claim so they become non-infringing.
Security: Each party must unless it has the prior written consent of the other party:
- keep confidential at all times the Confidential Information of the other party;
- effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorized access or use; and
- disclose the other party’s Confidential Information to its personnel or professional advisors on a need-to-know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of and complies with, the provisions of clauses 7.1.1 and 7.1.2
Permitted disclosure: The obligation of confidentiality in clause 7.1.1 does not apply to any disclosure or use of Confidential Information:
- to perform the Agreement or exercise a party’s rights under the Agreement;
- required by law (including under the rules of any stock exchange);
- which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
- which was rightfully received by a party to the Agreement from a third party without restriction and breach of any obligation of confidentiality; or
- by the Supplier, if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 7
Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement.
No implied warranties: To the maximum extent permitted by law:
- the Supplier’s warranties are limited to those set out in the Agreement, and liability for them during any 18 months is limited to 1to 8 months’ Fees paid by Customer or in case the duration of the Agreement is less than 18 months, the total Fees paid by the Customer from the Start Date to the date of the first event giving rise to liability. This limitation of liability will not be applied if:
- Supplier is liable for breaching the obligations concerning Data processing; or
- if Supplier is liable for breaching contractual obligation due to wilful misconduct or gross negligence; or
- about a breach of the intellectual property rights of third parties.
- The Supplier will use reasonable efforts to ensure the SaaS Service:
- meets the Customer’s requirements; and
- be secure, free of viruses, uninterrupted, and error-free.
Consumer Guarantees: The Customer agrees and represents that it is acquiring the Services, and entering the Agreement, for business purposes as an end-user.
Limitation of remedies: Where legislation or rule of law implies into the Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Agreement.
Maximum Liability 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 18 months exceed an amount equal to the Fees paid by the Customer under the Agreement in the previous 18 months (which during the first 18 months is deemed to be the total Fees paid by the Customer from the Start Date to the date of the first event giving rise to liability). The cap in this clause 9.1 includes the cap set out in clause 8.2.1. This limitation of liability will not be applied if:
- Supplier is liable for breaching the obligations concerning Data processing; or
- if Supplier is liable for breaching contractual obligation due to wilful misconduct or gross negligence; or
- about a breach of the intellectual property rights of third parties.
No liability for others’ failure: 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.
Mitigation: 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.
TERM, TERMINATION, AND SUSPENSION
Duration: Unless terminated under clause 10 of the Agreement:
- starts on the Start Date and ends on the End Date; but where no End Date is set out in the Key Details, continues for successive terms 12 months from the Start Date.
- the Customer and the Supplier can terminate the contract at any time by giving 30 days’ notice.
- the Agreement shall be terminated after 30 days the other party has received the notice or on the date indicated in the notice which shall not be less than 30 days after receiving such notice.
Other termination rights:
- Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
- breaches any material provision of the Agreement and the breach is not:
- remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
- capable of being remedied;
- becomes insolvent, liquidated, or bankrupt, has an administrator, receiver, liquidator, statutory manager agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
- is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.
- If the remedies in clause 6.5.3 are exhausted without remedying or settling the IP Claim, the Supplier may, by notice to the Customer, immediately terminate the Agreement.
Consequences of termination or expiry:
- Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.
- On termination or expiry of the Agreement, the Customer must pay all Fees for Services provided before that termination or expiry.
- Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of the Agreement and subject to clause 10.4 a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
- At any time before one month after the date of termination or expiry, the Customer may request:
- a copy of any Data stored using the SaaS Service provided that the Customer pays the Supplier’s reasonable costs of providing that copy. On receipt of that request, the Supplier must provide a copy of the Data in a common electronic form. The Supplier does not warrant that the format of the Data will be compatible with any software; and/or
- deletion of the Data stored using the SaaS Service, in which case the Supplier must use reasonable efforts to promptly delete that Data.
- To avoid doubt, the Supplier is not required to comply with clause 10.4 to the extent that the Customer previously requested deletion of the Data.
Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 4.6, 6, 7, 9, 10.4, 10.5, and 11 continue in force.
Rights to restrict: Without limiting any other right or remedy available to the Supplier, the Supplier may restrict or suspend the Customer’s access to the SaaS Service and/or delete, edit or remove the relevant Data if the Supplier considers that the Customer (including any of its personnel) has:
- undermined, or attempted to undermine, the security or integrity of the SaaS Service or any Underlying Systems;
- used, or attempted to use, the SaaS Service:
- for improper purposes; or
- in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service;
- transmitted, inputted, or stored any Data that breaches or may breach the Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect, or misleading.
Process: The Supplier must notify the Customer where it restricts or suspends the Customer’s access, or deletes, edits, or removes Data, under clause 10.5
Good faith negotiations: 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.
Obligations continue: Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.
Right to seek relief: This clause 11 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
Force Majeure: 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:
- immediately notifies the other party and provides full information about the Force Majeure;
- uses best efforts to overcome the Force Majeure; and
- continues to perform its obligations to the extent practicable.
Rights of third parties: No person other than the Supplier and the Customer has any right to a benefit under, or to enforce, the Agreement.
Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
Notices: 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 any provision of the Agreement is, or becomes, illegal, unenforceable, or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability, or invalidity.
- If modification under clause 12.6.1 is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability, or validity of the remaining provisions of the Agreement.
Variation: Subject to clause 5.4 any variation to the Agreement must be in writing and signed by both parties.
Entire Agreement: The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged, or agreed upon before 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.
Subcontracting and assignment:
- The Customer may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of the Supplier, that consent is not to be unreasonably withheld. The Customer remains liable for its obligations under the Agreement despite any approved assignment, subcontracting, or transfer. Any assignment, novation, subcontracting, or transfer must be in writing. To avoid doubt, a group of legal companies is considered as a single Customer providing that they all are part of the Agreement and all legal entities have signed the Agreement.
Law: The Agreement is governed by, and must be interpreted by, the laws of Estonia. Each party submits to the non-exclusive jurisdiction of the Courts of Estonia about any dispute connected with the Agreement.
Counterparts: 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.
- Consent. Neither party will use the other party’s name, logo, or trademarks, or issue any press release or public announcement regarding this agreement, without the other party’s written consent, unless specifically permitted under this agreement or required by Law.
- Cooperation. The parties will cooperate to draft all appropriate press releases and other public announcements relating to the subject matter of this agreement and the relationship between the parties.
- No Unreasonable Delay. The parties will not unreasonably withhold or delay their consent to press releases or public announcements.
- The Customer provides its logo(s) to the Supplier for using it in providing the SaaS Service. The Supplier can use the Customer’s logo as a reference for promotional use.
End of Section B
SECTION C: ANNEXES, AMENDMENTS, AND ATTACHMENTS
End of Section C