This SaaS Agreement (“Agreement”) is entered into by and between Board International SA (“Board”), a company with offices at Via Maestri Comacini n. 4, 6830, Chiasso (Switzerland) and ______________ (“Customer”), a company with offices at ___________________________ Tax ID _____________. 
(A) Customer wishes to use the Licensed Software in its business operations and therefore is purchasing a certain number of Licenses from Board; (B) Board International SA and Microsoft (also “MS”) entered into a Commercial Marketplace Terms of Use and into a Publisher Agreement pursuant to which Microsoft granted to Board the right to publish listings for offers in the Azure Marketplace or AppSource. (C) Customer and Board (the “Parties” and each, a “Party”) desire to set forth the terms and conditions pursuant to which Customer will use the Licensed Software. 
NOW, THEREFORE, in consideration of the foregoing premises, the Parties, intending to be legally bound, hereby agree as follows: 
1. Definitions and Interpretation. 1.1. "Agreement” means this agreement between Board and the Customer and all Exhibits, the Documentation and all other ancillary documents herein referred to. 1.2. “Available” or “Availability” means any time when the production instances of the Licensed Software is accessible to the Customer, subject to and as further described in Clause 4.1. 1.3. “Business Day” means a day other than a Saturday, Sunday or public holiday in the country in which Customer is situated when banks in the capital city of that country are open for business. 1.4. “Board Cloud” means the cloud infrastructure through which the Licensed Software is made available by Board to the Customer. 1.5. “Confidential Information” means any information whether oral, or written, of a private, secret, proprietary or confidential nature, concerning either Party or its business operations, that is either clearly labelled as such or should be reasonably be understood to be confidential or proprietary, including without limitation: (a) business plans, marketing plans, financial data, employee data, technical information and know how, (b) the System, (c) Customer Data and (d) the terms of this Agreement, including pricing, which shall be deemed to be the Confidential Information of both Parties. Confidential Information will not include information that: (i) was rightfully in the public domain prior to receiving such information, or (ii) becomes publicly available without breach of this Agreement, or (iii) becomes known to the receiving Party after rightful disclosure from a third party not under an obligation of confidentiality. 1.6. “Customer” means the entity purchasing the License and Support Services, as specified in the Order Form. 1.7. “Customer Data” means all proprietary information of the Customer submitted to, stored within, or processed, in an encrypted manner, using the Licensed Software. 1.8. “Documentation” means the specifications, technical data and other information made available by Board to Customer online at http://help.board.com. 1.9. “Effective Date” shall have the meaning set out in Clause 11.1. 1.10.“Fees” means the License Fees and (if applicable) the Support Fees and all other fees payable by Customer to Board for any other rights and services provided under this Agreement, as specified in the applicable Order Form. 1.11.“Force Majeure Event” shall have the meaning given to it in Clause 13.2.1. 1.12.“Group” means, in respect of a Party, any company controlling and/or controlled by, directly or indirectly, that Party, where for the purposes of this definition, the term “control” means the possession of the power to, directly or indirectly, direct or cause the direction of the management and policies of that Party, whether through the ownership of voting securities, by contract, or otherwise.
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1.13. “Initial Term” shall have the meaning set out in Clause 11.1. 1.14.“License” shall have the meaning set out in clause 2.1. 1.15. “License Fees” means all fees payable by Customer to MS for the License (including, for the avoidance of doubt, the access to and benefit of the Standard Support Services). 1.16.“Licensed Software” means the software named ‘Board Management Intelligence Toolkit Software’, any Upgrades and any third-party components provided or owned by third party suppliers and licensed to Board which form part of such software, made available by Board to Customer under the Agreement. 1.17.”Named User” means a distinct physical individual, authorized by Customer to access and use the Licensed Software with a unique username and password. For the avoidance of doubt, a Named User must be an employee or a service provider of the Customer or Customer Group. 1.18.“Order Form” means an ordering document that has been (i) executed by a duly authorised representative of Customer in writing; and (ii) accepted by a duly authorised representative of Board in writing, each in the form attached as Exhibit A (each a “License Order Form”) and / or (if applicable) Exhibit B (each a “Support Order Form”) hereto and / or in any other form set forth by the Parties for an Order Form. 1.19.“Planned Maintenance Downtime” means the time during which the Licensed Software is unavailable to the Customer for Board to perform maintenance and provide Upgrades. The Planned Maintenance Downtime will be performed during a Sunday of each month, from 9am to 12pm (local region time), unless otherwise communicated by Board. 1.20. “Premium Support Package” shall have the meaning given in paragraph 1.1 of Exhibit C. 1.21. “Premium Support Package Threshold” shall have the meaning given to it in Exhibit B. 1.22. “Renewal Term” shall have the meaning set out in clause 11.1. 1.23. “Standard Support Services” shall have the meaning given in paragraph 1.1 of Exhibit C. 1.24. “Support Fees” means those fees payable by Customer to Board for any relevant Premium Support Package (as specified in the Support Order Form) and provided under the Support Services Agreement in accordance with Exhibit C of this Agreement. 1.25.“System” means all of Board’s property and technology (including the Board Cloud, hardware, software, networks, methodologies, algorithms, products, processes, know-how, techniques, designs and other tangible or intangible property) that is used by Board in providing access to the Licensed Software. 1.26.“Support Web Site” means the Board maintenance and support website available at http://support.board.com or any successor website where the Customer may access the support ticketing system. 1.27.”Upgrade” means a revision to or modification of the Licensed Software. Such modifications or revisions may: (i) fix any error or bug within the Licensed Software (ii) improve upon existing features and operations within the Licensed Software, (iii) modify the Licensed Software to comply with applicable laws, regulations, industry standards or market practice or (iv) add enhanced functionality to the Licensed Software. 1.28.“Virus” means anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices. 1.29.Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. 1.30.A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality). 1.31.A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. 1.32.Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. 1.33.A reference to a statute or statutory provision: (i) is a reference to it as it is in force as at the date of this Agreement and as the same is modified by the relevant governmental authority and (ii) shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision. 1.34.A reference to writing or written includes e-mail. 1.35.References to Clauses and Exhibits are to the Clauses and Exhibits of this Agreement.
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1.36. Each Order Form shall be subject to the terms of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of the Order Form will prevail. 1.37.A reference to the terms of this Agreement includes the terms of any applicable Order Form. 
2. Grant of License 2.1 License Grant. Subject to Customer’s compliance with the terms of this Agreement and the applicable Order Form, Board hereby grants Customer a limited, worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable right to permit Named Users to access and use the Licensed Software during the Initial Term and (as applicable) any Renewal Term solely for the Customer’s and Customer’s Group’s internal business operations and without exceeding the maximum number of Named Users in respect of which the relevant License Fees have been paid from time to time by the Customer (the “License”). 2.2 Reservation of Rights. Except for the License granted in Clause 2.1, no other right, title or interest in the intellectual property rights or technology of Board is granted and all such rights are hereby expressly reserved. 2.3 Named User Restrictions. The Customer shall not, and shall not allow any Named User and/or any third party to: (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Licensed Software and/or Documentation (as applicable) in any form or media or by any means; or (b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Licensed Software; or (c) access all or any part of the Licensed Software and Documentation in order to build a product or service which competes with the Licensed Software and/or the Documentation; or (d) license, sub license, sell, rent, lease, transfer, assign, disclose, or otherwise commercially exploit, or otherwise make the Licensed Software and/or Documentation available to any third party except the Named Users; or (e) use the Licensed Software in a manner other than as specifically permitted in this Agreement. 2.4 Cloud environments. For the provision of the Licensed Software via the Board Cloud, Board uses Microsoft Azure products/on-line services, whose terms and conditions (available at https://www.microsoft.com/licensing/terms/productoffering/MicrosoftAzure/EAEAS) apply to the Customer’s use of the Licensed Software. 
3. Payment for Licensed Software. 3.1 Order Form. Customer shall pay the Fees as stated in this Clause 3 and in the applicable Order Form. 3.2 Increases to the Fees. Each of the Licence Fees and the Support Fees will be increased up to 8% per annum. 3.3 Additional Server Fees. In the event that that Customer requires that special architectural requirements need to be made to the Board Cloud, Board shall require the Customer to make payment of the relevant additional Fees, to be specified in an Order Form. 3.4 Audit and License True-Up. Customer agrees to ensure that its use of Licensed Software does not exceed the number of Named Users or other license terms as set forth in any applicable Order Form. If Board determines that Customer has exceeded the number of Named Users or any other license terms, Board shall notify Customer. Customer shall, within thirty (30) days of such notification, remedy such non- compliance, including, as applicable and without prejudice to Board’s other rights, by paying additional License Fees – calculated from the beginning of the Initial Term or Renewal Term (as applicable) – for any 
Invoicing and Payment. The Licence Fees include the access to and benefit of the Standard Support Services. In the event that the Customer also signs a Support Order Form for the purchase of a Premium Support Package, the License Fees and the applicable Support Fees shall be invoiced separately by MS and paid by the Customer to MS as set forth in the applicable Order Form. Except as set forth in the applicable Order Form, all License Fees and Support Fees are payable annually in advance. All payment obligations are non-cancellable, and all amounts paid are non-refundable. In the event of any non- payment of any amount under this Agreement by the Customer by the relevant due date as agreed on the applicable Order Form, and without prejudice to any other rights and remedies of Board, interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% or the higher rate as it may be foreseen by the State legislation or any applicable regulatory authority, commencing on the due date and continuing until fully paid, whether before or after judgment. 
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additional Named Users above the maximum number permitted under its License that have been accessing and/or using the Licensed Software, at the pricing set forth in the applicable Order Form. 3.5 Additional Named Users. If the Customer wishes to increase the maximum number of Named Users under its License, the Customer shall notify Board in writing. Where Board is agreeable to increasing the Customer’s maximum number of Named Users under its License Board shall issue a new amended Order Form reflecting the new maximum number of Named Users and the relevant additional License Fees for such additional Named Users and Board shall activate the additional Named Users as part of the License within a reasonable period of time. For the avoidance of doubt, unless previously otherwise agreed between the Parties in writing on the Order Form, in relation to such additional Named Users and related additional License Fee, Board will use its current price list as may be updated from time to time; the Customer shall pay to MS the relevant License Fees for such increase to the maximum number of Named Users as set out in the applicable Order Form. 3.6 Suspension of Access. Without prejudice to Board's other rights, Board reserves the right to disable Customer’s usernames and passwords and/or suspend access to the Licensed Software if Customer fails to make timely payment of undisputed Fees when due, without liability to the Customer, until all such undisputed amounts are paid in full. 
4. Provision and Use of Licensed Software. 4.1 Availability. 4.1.1 During each one (1) month period during the term of the Agreement, Board warrants that the production instances (and so excluding the Sandbox) of the Licensed Software shall be Available 99.8% of the time, provided that the following shall not be taken into account when calculating Availability: 4.1.2 The Availability of a production instance of the Licensed Software is calculated on a monthly basis as follows: (Maximum Available Minutes – Downtime) / (Maximum Available Minutes) X 100, where: 4.1.3 In the event that Board fails to maintain the foregoing Availability of the Licensed Software on any production instance for three consecutive months (the “Availability Period”), Customer’s sole and exclusive remedy shall be to request a service credit equal to: 
(i) Planned Maintenance Downtime; (ii) downtime caused by circumstances beyond Board’s control, including the events of force majeure set out in Clause 13.2; (iii) general internet outages, failure of Customer’s infrastructure or connectivity, computer and telecommunications failures and delays not within Board’s control; (iv) network intrusions or denial-of-service attacks; and (v) any Downtime (as defined in Clause 4.1.2(ii) below) that lasts for less than ten (10) consecutive minutes. (i) "Maximum Available Minutes" is the total number of minutes that a production instance is deployed during a month; and (ii) "Downtime" is the total number of minutes within Maximum Available Minutes that a production instance of the Licensed Software is not Available. For the avoidance of doubt, a production instance of the Licensed Software is considered not Available when no standard HTTP web operations are successful or return a valid response, provided that (in accordance with Clause 4.1.1(v)) any period of Downtime that lasts for less than ten (10) consecutive minutes shall not be taken into account when calculating the total amount of Downtime of any production instance. A. 2% of the relevant amount of the License Fee payable in the last month of the Availability Period, if the Availability in the last month of the Availability Period is less than 99.8% but equal to or greater than 99%; B. 4% of the relevant amount of the License Fee payable in the last month of the Availability Period, if the Availability in the last month of the Availability Period is less than 99%, 
provided that, subject to Clauses 10.2, 10.3 and 10.4, in no event shall Board’s total annual aggregate liability to the Customer to pay service credits under this Clause 4.1.3 exceed an amount equal to 100% of the total License Fees paid or payable by Customer in any month of the Agreement.
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4.1.4 The Customer acknowledges and agrees that the terms of this Clause 4.1 relating to service credits constitute a genuine pre-estimate of the loss or damage that Customer may suffer as a result of Board’s delivery failure and are not intended to operate as a penalty for Board’s non- performance. 4.2 Service Credits. Board shall promptly provide the Customer with a report in the event that, during any month of the Agreement, there has been a non-Availability of the Licensed Software that gives the right to a service credit. In any case, the Customer may, on reasonable prior written notice, request Board to report on the Availability of the Licensed Software at the end of any month of the Agreement and, if such report identifies that the Customer is entitled to a service credit under Clause 4.1, the Customer must consequently request all service credits in writing to Board within thirty (30) days of the date of the report. 4.3 Upgrades. Upgrades are provided to Customer at no additional Fees, including all Documentation describing the purpose and function of the Upgrades. The Customer acknowledges that some Upgrades are necessary where Licensed Software component(s) or versions reach “end of life” (“EOL”), for instance due to technology or product evolution or obsolescence. Upgrades shall be applied to the Licensed Software by Board as such Upgrades are developed and released to Board’s general user base. For the avoidance of doubt, the Customer acknowledges that Board reserves the right to determine how and when to develop and apply any Upgrades and whether Board chooses to apply an Upgrade is at Board’s sole discretion and dependent on Board’s editorial policy. Upgrades shall be implemented by Board within service windows communicated to the Customer with a reasonable notice period. 4.4 Unique Authentication. The License to access and use the Licensed Software shall be restricted to authorized Named Users only. Customer shall ensure all Named Users maintain the security of any password, username, or other form of authentication issued to them in order to obtain access to and use of the Licensed Software. The Customer shall ensure that usernames and passwords are: (i) uniquely assigned to a specific Named User; (ii) not shared by multiple individuals at any one time (on a single device or otherwise) or used concurrently by one individual on multiple devices; and (iii) not transferred from a Named User to another individual unless such individual is an employee or a service provider of the Customer or the Customer’s Group and the prior Named User no longer has any right to access or use the Licensed Software. 4.5 Datacenter and Security Requirements. Board shall comply with the organizational and security measures as set forth in Exhibit E attached to this Agreement. Board agrees that it shall make the Licensed Software available to Customer using a data center in a manner consistent with the following requirements: 4.5.1 Board shall, and shall require its vendors and/or suppliers to, implement and maintain procedures to segregate Customer Data from Board’s data and data belonging to Board’s other customers. 4.5.2 Board shall, and shall require its vendors and/or suppliers to, establish and maintain appropriate environmental, safety and facility procedures, data security procedures and other safeguards designed to protect against the destruction, corruption, loss or alteration of the Licensed Software and any Customer Data, and to prevent unauthorized access, alteration or interference by third parties of the same. 4.5.3 Board shall monitor for any attempted unauthorized access to, or use or disclosure of, the Licensed Software or Customer Data and shall promptly take all necessary and appropriate action in the event any such attempt is discovered, promptly notifying Customer of any breach of security. 4.5.4 When software vulnerabilities are revealed and addressed by a vendor patch, Board will obtain the patch from the applicable vendor and apply it as it is tested and determined to be safe for installation to Board’s customer base. 4.5.5 Board shall deploy any instance of the Licensed Software using the nearest (supported by Board) Microsoft Azure data center to the location of the Customer, unless otherwise mutually agreed between the Parties. 4.6 Customer Data 4.6.1 Customer is the exclusive owner of the Customer Data loaded on the System and shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data and the means by which Customer acquires the Customer Data, including where the Customer engages the assistance of Board to upload, process, consult and extract the Customer Data. 4.6.2 Board may access Customer Data only (i) with the prior written consent or request of the Customer, to respond to System or technical problems; or (ii) otherwise in accordance with 
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Customer’s written instructions. If, in the aforementioned cases, the Customer Data are Personal Data (as defined below), Clause 12 shall apply. 4.6.3 To the extent permitted by law, by entering into this Agreement, the Customer hereby expressly consents to the use of Customer’s name and logo in Board customer lists, promotional and marketing materials. Furthermore, the Customer agrees to the following: (i) a social media announcement via Board social media accounts within 2 weeks of signature of this Agreement; (ii) a Board press release within 4 weeks from signature of this Agreement; and (iii) a case study in the timeframe agreed with the Customer separately. 4.7 Board Cloud RTO and RPO. 4.7.1 Board shall ensure that the Board Cloud will backup and restore Customer Data to the extent necessary for Board to fulfil its RPO (Recovery Point Objective) and RTO (Recovery Time Objective) obligation under Clause 4.7.2 but has no other obligations related to performing backups or restoration of Customer Data. Customer may at any time autonomously perform backups of its own Customer Data through the System and download it on its storage device and Customer is solely responsible for the performance of said backups. Customer acknowledges that RPO shall be deemed as the maximum interval of time in which Customer Data might be lost, and consequently restored, due to an unplanned interruption to or reduction of availability of the Board Cloud and that RTO shall be deemed as the period of time within which the availability of the Board Cloud is restored after the aforesaid interruption or reduction. 4.7.2 In the event an incident related to the Board Cloud occurs, Board shall respectively ensure (i) as an RPO, an interval of time of a maximum of 24 hours and (ii) as an RTO, a period of a maximum of 6 hours. 4.8 No Harmful Use. Customer and Board shall not: (i) send, store or run Viruses; (ii) interfere with or disrupt the integrity of the Licensed Software or the data contained therein; or (iii) upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (including the right of publicity and/or privacy) without first obtaining the permission of the owner of such rights. In addition, Customer shall not (i) access the System and the Licensed Software for benchmarking or competitive purposes or (ii) access, distribute or transmit any Viruses, or any material during the course of its use of the Licensed Software and/or Documentation that (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; I is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) is otherwise illegal or causes damage or injury to any person or property; and Board reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to the Licensed Software if it breaches the provisions of this Clause 4.8. 4.9 Customer Responsibilities. Customer is solely responsible for (i) monitoring and controlling the activity of each Named User, (ii) ensuring Named User compliance with this Agreement, (iii) ensuring that there is no unauthorized access to the Licensed Software and notifying Board promptly of any such access of which Customer becomes aware, (iv) ensuring that the use of the Licensed Software and the performance of all its rights and obligations under this Agreement is in compliance with all applicable laws and regulations, (v) procuring and maintaining its network connections and telecommunications links from its systems to Board’s data centers/cloud provider, and all problems, conditions, delays, delivery failures and (vi) all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet. Customer shall be solely responsible and liable for the acts and omissions of each Named User. 4.10Penetration Test. The Customer may perform, once a year, a penetration test of the Board Cloud only in accordance with the Board Cloud penetration testing engagement rules as applicable at the time of the request. 
5 Support 5.1 During the term of the Agreement, Board will provide: 5.1.1 the Standard Support Services for the Licensed Software through its Support Web Site and as detailed in Exhibit C (Support Services Agreement); and 5.1.2 (where applicable) the Premium Support Package as set out in the applicable Support Order Form and Exhibit C (Support Services Agreement).
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