Confidential © Sievo 1(7)
General Terms and Conditions
Appendix 2
1 General
These General Terms and Conditions of Sievo (the “General
Terms”) shall apply to provision of the Application Software
Service and any other products, services and related materials,
documents and media by Sievo to the Customer except as
otherwise explicitly agreed in the agreement (the “Agreement”)
that incorporates these General Terms.
2 Definitions
For the purpose of these General Terms and the Agreement,
the following terms shall have the following meanings:
“Additional Software Release” shall mean new software
releases other than the enhancements released in accordance
with Section 4.2, such as, but not limited to, new Module(s) to
the Application Software Service. Modules of the Application
Software as per the Effective Date are listed in the Agreement.
“Affiliated Company” of a Party shall mean any entity that is (a)
directly or indirectly controlling a Party, (b) under the same
direct or indirect control as the Party, (c) directly or indirectly
controlled by the Party for so long as such control lasts. For the
purposes of this Agreement, “control” shall exist through direct
or indirect ownership of more than 50% of the nominal value
of the issued equity share capital and/or of more than 50% of
the shares.
“Agreement” is defined in Section 1 above.
“Application Software” means Sievo Procurement Analytics
Solution provided as Software-as-a-Service and related
materials, documentation and media which includes, but is not
limited to, any and all enhancements released in accordance
with Section 4.2, new releases, new versions, additions,
amendments, changes, enhancements, updates and/or other
modifications.
“Application Software Service” means the Module(s) of the
Application Software subscribed by the Customer in the
Agreement or otherwise, provided by Sievo as a service to the
Customer over the public internet.
“Annual Base Fee” means the annual base fee set out in the
Agreement for each Module of the Application Software
Service, as amended from time to time in accordance with this
Agreement.
“Annual Purchase Spend” means the Customer’s annual
purchase spend excluding any invoices that are not considered
as procurement spend (such as taxes, salaries). To determine
what is considered as annual purchase spend, if Customer is
using Spend Analysis module, the same spend numbers that
are visible in reporting as categorized by Sievo’s applicable
filters in force from time to time shall be used to determine
Annual Purchase Spend, and in such a case only spend from
integrated companies is considered. If Customer is not using
Spend Analysis module, Parties shall agree on a process to
review Annual Purchase Spend.
“Annual Subscription Fee” covers the Application Software
Service and is the Total Annual Base Fee adjusted by the
Annual Purchase Spend as set out in Section 7 below and in
the Agreement, subject to possibly applicable discounts.
"Background IP“ means intellectual property (IP) owned or
controlled by a Party prior to the effective date of this Terms
and Conditions or that IP developed or acquired by a Party
from activities independent of the services performed under
this Terms and Conditions.
“Confidential Information” shall include all information, data,
document, material, substance and device disclosed to a Party
by the other Party or disclosed by any Affiliated Company of a
Party to the other Party or which the other Party has access or
takes notice of during the execution of this Agreement.
“Consulting and Integration Services” mean such
implementation, integration and consulting services as may
from time to time be agreed to be provided by Sievo to the
Customer in a Work Order or otherwise in writing, and which
may include developing an interface to a Customer’s IT-system,
configuration of the Application Software Service according to
the Customer’s needs, execution of training events, drafting of
documentation, execution of general project management
tasks and other implementation, integration and consultancy
services.
“Consumer Price Index” means Harmonized Index of
Consumer Prices: All Items for Euro area (19 countries)
(CP0000EZ19M086NEST), as available here:
https://fred.stlouisfed.org/graph/?id=CP0000EZ19M086NEST.
In case this index is discontinued, the Parties shall rely on
another equivalent consumer price index to be separately
agreed by the Parties in good faith.
“Customer” is defined in Section 1 of the Agreement.
“Customer Components” mean (a) any and all software files,
configuration files, and other files that need to be deployed at
users’ personal computers, (b) any other software components
or configuration changes that need to be delivered within
Customer’s firewall, and (c) all hardware equipment that is
required within Customer’s firewall to operate the Application
Software Service.
“Customer’s Data” means any information or material
submitted to the Application Software Service by the Customer
or a third party acting on behalf of the Customer.
“Delivery” means the services and the deliverables agreed to be
delivered under a Work Order.
“Effective Date” is defined in the Agreement.
“Feedback” means any input, feedback, development ideas,
proposals or other such concerning the Application Software
Service or any other Sievo’s or its licensors’ products or services.
“General Terms” is defined in Section 1 above.
“Generic Support Services” mean services that are provided by
Sievo to (i) correct errors in the Application Software Service
and in other services provided by Sievo, (ii) correct mistakes
made by the Customer, (iii) provide consultation for the
Customer’s questions, and (iv) implement change requests, all
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as described in more detail in Sievo’s Service Level
Commitment.“Initial Term” is defined in Section 9.1 below.
“Intellectual Property Rights” mean (a) any and all subject
matter that is entitled to protection of rights under patent law,
copyright law (including, but not limited to, economic and
moral rights) and neighboring rights, trademark law (including
common law protection), design patent or industrial design
law, trade secret law and/or any other statutory provision or
common law principle in any country, state or jurisdiction,
including legal provisions governing the protection of
confidential information and trade secrets, as well as any and
all rights to make changes on them and to assign them to third
parties with or without the right to reassign, and (b) all
registrations and applications for registration of the subject
matter identified in (a) above.
“Module” means each of the modules of the Application
Software Service and other related services provided by Sievo
as listed in the Agreement and its Appendices.
“Party” and “Parties” are defined in Section 1 of the Agreement.
“Renewal Term” is defined in Section 9.1 below.
“Service Package(s)” mean different service packages provided
by Sievo on Support Services.
“Sievo” and “Supplier” are defined in Section 1 of the
Agreement.
“Sievo Proprietary Data” means aggregated, statistical or other
data and algorithms, models or derivative products developed,
processed and maintained by Sievo and/or Sievo’s licensors and
is based on information compiled by Sievo from various data
sources, such as data anonymized/generalized pursuant to
Section 8.2, data provided by Sievo’s licensors, and data derived
from public sources.
“SSSO” means Sievo Service and Support Organization.
“Support Services” mean the Generic Support Services, and any
other support service offered by Sievo from time to time.
“Total Annual Base Fee” means the sum of Annual Base Fees of
the Modules subscribed by the Customer.
“Work Order” means each work order that may be concluded
by the Parties for the provision of Consulting and Integration
Services by Sievo to the Customer.
3 General Responsibilities of the Parties
3.1 Good Faith. Both Parties will act in good faith when
performing their obligations under this Agreement.
3.2 General responsibilities of Sievo. Sievo undertakes to
provide the Application Software Service and perform the
Support Services and Consulting and Integration Services in
accordance with the terms and conditions of this Agreement
and with due care. All services provided under this Agreement
will be provided by using Sievo’s working methods and tools.
3.3 General responsibilities of the Customer. The Customer
undertakes to perform its obligations in conformity with this
Agreement and with due care the tasks for which the
Customer is responsible. The Customer shall furnish Sievo with
correct, complete and current information and instructions at
such times as Sievo may require to perform its obligations
under this Agreement.
4 Application Software Service
4.1 Subscription. Subject to compliance with the terms of the
Agreement by the Customer, and in particular subject to
Customer’s timely payment of the fees set out hereunder, Sievo
grants to the Customer a personal, limited, non-exclusive and
non-transferable right to access and use the Application
Software Service in accordance with the terms and conditions
of this Agreement and any applicable laws, rules and
regulations solely for the Customer’s and its Affiliated
Companies’ internal use. The right is valid only during the term
of this Agreement and it covers only the agreed Module(s).
4.2 Enhancements. Sievo shall continuously improve and
develop the Application Software Service and therefore may
release enhancements relating to such improvement and
development work for Customer's use without additional
charge, including configuration work to enable use of such
enhancements in relation to Modules of the Application
Software Service. For avoidance of doubt, any configuration
work shall include configuration work related to
customizations developed for the Customer. New
enhancements shall be communicated in writing via a
newsletter (to which the Customer can subscribe to) by Sievo
to Customer.
4.3 Additional Software Releases. Additional Software Releases
may be developed and released by Sievo at its sole discretion.
Unless otherwise explicitly agreed in relation to a specific
Additional Software Release(s), the Additional Software
Releases are not deemed to be included in the Application
Software Service nor the Application Software and are not thus
covered by this Agreement.
4.4 Service Level and Storing of Historical Data. Sievo shall
provide the Application Software Service in accordance with
the Sievo’s Service Level Commitment. Sievo is responsible for
monitoring that the Application Software Service is operational
and accessible and when that is not the case, on informing the
Customer on the failure without undue delay after Sievo
becomes aware of the failure.
Sievo has the right to take Customer’s historical data offline
from the Application Software, albeit ensuring that at all times
at least current year and three (3) full previous year’s data is
available. Furthermore, Sievo is entitled to delete any
Customer’s Data stored in Sievo’s offline back-up data after
three (3) years has passed from removing such Customer’s Data
from the Application Software. However, before taking
Customer’s data offline and deleting the data relating to the
CO2 Module (I.e. the relevant CO2 emission and other necessary
data) Sievo shall always inform the Customer and upon request
of the Customer send to Customer such data in electronic
machine-readable format (excel or csv) without additional cost.
4.5 The Server and the Customer Components. To access the
Application Software Service, the Customer is responsible for
acquiring, installing, configuring, maintaining, and disposing all
Customer Components, specified by Sievo by the time of
Customer subscription.
4.6 Backups. Sievo shall be responsible for maintaining backup data necessary to replace the Customer data in the event of
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loss and/or damage to such data from any cause. Sievo shall
store back-up data at such intervals as is described in Sievo’s
Information Security Commitment.
4.7 Data Security and Data Privacy. The Customer accepts the
security of the Application Software Service on such level as is
set out in Sievo’s Information Security Commitment. In case the
Customer discovers a data breach or vulnerability in the
Application Software Service or other services provided by
Sievo, the Customer shall not exploit or otherwise take
advantage of the breach or vulnerability and undertakes to
notify Sievo of such breach or vulnerability without delay. Sievo
shall process the Customer’s personal data in accordance with
the Appendix 1 (Data Processing Agreement), as amended in
accordance with Section 13.8. Sievo may use sub-processors in
processing the Customer’s personal data as detailed at
https://hub.sievo.com/personal-data-sub-processors.
5 Support Services
5.1 The SSSO. Sievo provides the Customer with services and
support related to the Application Software Service via the
SSSO in accordance with this Section 5 and Sievo’s Service
Level Commitment. The SSSO shall act as the primary point of
contact for the Customer on all questions and issues. Sievo shall
record a case for each service request that the Customer
initiates with the SSSO. The SSSO shall resolve each case in
accordance with the case resolution process described in
Sievo’s Service Level Commitment.
5.2 Complex Service Requests. If Parties conclude that a certain
service request is too complex to be managed as a single case,
Parties may agree to implement the service request as a
separate Consulting and Integration Service project in a Work
Order, subject to the terms and conditions of Section 6
(Consulting and Integration Services).
5.3 Generic Support Services. Sievo provides Generic Support
Services in accordance with Sievo’s Service Level Commitment
in consideration of the fees set out in Agreement.
5.4 Use of Partner Data Enrichment Services. The services or
products provided to the Customer under the Agreement may
contain or function together with external data source and/or
enrichment services provided by third party service providers
detailed at https://hub.sievo.com/partner-data-enrichmentservices from time to time. Such external data source and/or
enrichment services, such as translation services, shall be
subject to the terms and conditions applicable from time to
time to such external data source and/or enrichment services.
Sievo shall not be responsible or liable for external data sources
and/or enrichment services. In the case that a third party service
provider changes the API (Application Programming Interface)
related to external data source and/or enrichment services,
Sievo shall as soon as practically reasonable change its services
so that the revised API can be used. In the case that the third
party service provider shall (i) cancel an external data source
and/or enrichment service, (ii) substantially change the nature
of such service, and/or (iii) substantially change the pricing of
such service, Sievo shall look for alternative solutions for
providing similar services, and if no such option is reasonably
available, Sievo shall have the right to stop providing such
external data source and/or enrichment services and based
functionalities.
6 Consulting and Integration Services
6.1 General. The Parties may from time to time agree on the
provision of Consulting and Integration Services by Sievo to the
Customers to complement the Application Software Service
and the Support Services. The terms and conditions of this
Section 6 apply to the provision of Consulting and Integration
Services.
6.2 Work Orders. Each Consulting and Integration Service
request shall be implemented as a separate project which is
agreed upon in a Work Order entered into by the Parties. Each
Party’s authorized representative shall have the authority to
conclude Work Orders on behalf of the respective Party and to
agree on changes to the Work Orders. Each Work Order Plan
shall at the minimum set out the scope and specifications of
the Consulting and Integration Services to be provided by
Sievo, and description of deliverables where applicable, and
time schedule applicable to the project and the Work Order.
Unless agreed by the Parties in the Work Order, Sievo’s fees and
costs for the Consulting and Integration Services provided
thereunder shall be set out in Agreement.
6.3 General Obligations. Each Party shall contribute to the
implementation of a project under a Work Order with respect
to the factors that are under the command and/or control of
that Party. Each Party undertakes for its own part to make
without delay the decisions necessary to implement the
Project. Each Party shall assign to the project carried under a
Work Order required personnel resources and reserve sufficient
working time for them to perform the agreed tasks.
6.4 Acceptance Test. The Customer shall perform the
acceptance test on the Delivery within 30 days from the
Customer’s receipt of the Delivery. The Delivery shall be deemed
accepted, when (a) the time reserved for the acceptance test
has elapsed and the Customer has not notified Sievo of errors
or deficiencies in the Delivery preventing its acceptance; (b) the
Customer has accepted the Delivery in writing; or (c) the
Customer takes the Application Software Service or other part
of the Delivery into production use, whichever occurs first. The
Customer shall immediately inform Sievo in writing of all errors
and deficiencies detected in the Delivery during the acceptance
test. Errors or deficiencies which do not materially interfere with
the use of the Delivery shall not prevent the acceptance of the
Delivery. However, Sievo shall without undue delay remedy such
errors or deficiencies after acceptance.
6.5 Delay. If a Party finds that a delay will occur or is likely to
occur, such Party shall without a delay inform the other Party
in writing of the delay and of the effects of the delay on the
project carried out under a Work Order. The Customer shall be
entitled to liquidated damages if the acceptance of the
Delivery is delayed due to a reason directly attributable to Sievo.
The liquidated damages shall be calculated on the basis of one
percent (1%) of the price of the delayed part of the Delivery for
each ending week of delay. The maximum amount of
liquidated damages shall not exceed the total amount paid
under a Work Order. The Customer shall not be entitled to
liquidated damages on the basis of such deficiencies or errors
in the Delivery that do not prevent its acceptance. Each Party’s
liability for any delays in delivery shall be limited to this Section
6.5.
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7 Fees and Payment Terms
7.1 Annual Subscription Fee and Other Fees. Unless agreed by
the Parties in the relevant Work Order and Subscription
Agreement, Sievo’s fees and costs, including Total Annual Base
Fee and Sievo’s fees for the Support Services and the
Consulting and Integration Services, for the work and services
provided thereunder shall be set out in Agreement. The
Annual Subscription Fee is the Annual Base Fee adjusted on
the basis of the Annual Purchase Spend from the 12 months
preceding the date 60 days before the date of the invoice in
accordance with the tiers set out in the Agreement. The Annual
Subscription Fee is reviewed every time when the fee is
invoiced. For example, if an invoice is dated 13 October 2021,
the Annual Purchase Spend from August 15 2020 until August
14 2021 is used to determine changes (if any) in the Annual
Subscription Fees. If Customer is using Spend Analysis module,
the latest rolling 12 months spend number that is visible in
Sievo on the date 60 days before the date of the invoice shall
be used to determine Annual Purchase Spend. The Annual
Purchase Spend and any adjustments in the Annual
Subscription Fee will be informed by Sievo to Customer in
reasonable advance prior to invoicing. A change in the Annual
Subscription Fee based on the Annual Purchase Spend shall
not take effect retroactively. If additional Module(s) are added
to the scope of the Application Software Service, the Annual
Base Fee(s) of the added Module(s) set out in Sievo’s then
current price list shall be added to the Total Annual Base Fee
and the Annual Subscription Fee will be increased accordingly.
7.2 Taxes. The fees and prices are exclusive of VAT, withholding
tax, and other similar taxes or public charges. When applicable,
VAT, sales tax, withholding tax and other similar taxes and
public charges shall be added to Sievo’s invoice in accordance
with the applicable legislation. If the Customer is responsible
for any taxes and charges which may be levied, assessed or
imposed on the use or delivery of the Application Software
Service, the Support Services or the Consulting and Integration
Services the Customer is not entitled to deduct these taxes and
charges from the fees and prices payable to Sievo. VAT,
withholding tax and other similar taxes and public charges
payable are subject to any changes in taxes or other public
charges.
7.3 Payment Schedule for the Annual Subscription Fee. The
Annual Subscription Fee for the Initial Term will be invoiced at
the dates set out in the Subscription Agreement. The Annual
Subscription Fee for the first year of each Renewal Term will be
invoiced at the first day of each the Renewal Term since the
renewal is expressly confirmed by Customer by the placement
of a new purchase order. The Annual Subscription Fee for each
consequent year of the Renewal Term (if any) will be invoiced
on each anniversary of the respective Renewal Term.
Sievo shall invoice the fee for each year’s Service Package, when
applicable, together with the Annual Subscription Fee for the
same invoicing period.
7.4 Payment Schedule and Reporting for Generic Support
Services. Fees for the Generic Support Services are invoiced at
the beginning of each calendar month based on Generic
Support Services completed during previous calendar month.
When the Customer accepts a resolution of a case, the
Customer at the same time accepts the performance and
delivery of the Generic Support Services in relation to such case
and no separate acceptance for the hours is required. Should
the Customer fail to reply to a case resolution confirmation
within time frame defined in Sievo’s Service Level Commitment
(set out in the table in section 5.1.1 of the SLA
(https://hub.sievo.com/service-level-commitment-eu#caseresolution)), the case shall be deemed as accepted by the
Customer. Sievo shall make available to the Customer a report
of cases resolved during previous calendar month and
accepted by the Customer, which report shall include relevant
case attributes as well as Sievo’s fees. Should the Customer
disagree with Sievo’s fees, Sievo and the Customer will jointly
negotiate on the appropriate course of action.
7.5 Payment Schedule for Consulting and Integration Work and
Achievements of Milestones. Any fees that are related to the
achievement of milestones are invoiced when the Delivery for
a milestone has been accepted.
7.6 Payment Terms, Purchase Order References. Unless
otherwise indicated by Sievo on the invoice, the Customer shall
ensure that payment in full is received by Sievo within sixty (60)
days from the date of the payment baseline date. The payment
baseline date is the date when invoice has been sent, except
for the time based invoices where the payment baseline date
is the last date of the month during which the time has been
accumulated. Sievo may impose a late payment charge of
three percent (3%) per annum and eventual expenses of
judicial collection effectively incurred. Sievo shall include
purchase order and/or contract number references to all
invoices as per the Customer’s request and instructions
provided that the Customer has made such requests by
applicable invoicing date. For avoidance of doubt, Sievo may
not invoice the Customer without the purchase order number
references to be provided by the Customer, which shall be
provided to Sievo by the Customer without undue delay.
7.7 Costs and Expenses. Sievo shall be entitled to charge the
travel and accommodation separately based on realized costs
documented by receipts, since previously approved by
Customer. Sievo shall not be entitled to charge any costs
related to entertainment. All travel shall be agreed with
Customer in advance. Sievo shall follow Customer’s travel
policy, if such has been supplied to Sievo.
In the event of on-site work, since previously aligned and
approved in written by Customer, Sievo shall be entitled to
charge daily allowances for Sievo’s personnel based in Finland
required to travel in connection with this Agreement. The daily
allowances shall be charged in accordance with the Per Diem
rates and regulations set by the Finnish Tax Authority. For
Sievo’s personnel based outside of Finland, such as the United
States, Sievo may charge daily allowances based on applicable
regulations such as IRS per diem rates or alternatively charge
reasonable meal and incidental expenses. Sievo will confirm
the applicable per diem rates upon invoicing the travel costs.
(For reference purposes only the further details on Finnish per
diem daily allowance rates may be available from time to time
in English at the Finnish Tax Authority’s website:
https://www.vero.fi/en/). Travel costs shall be invoiced on a
calendar monthly basis at the end of each calendar month.
7.8 Changes in Fees. Sievo has the right to increase all prices by
seven and a half (7.5%) percent for the first Renewal Term. After
the first Renewal Term, Sievo has the right to increase all prices
by a percentage amount equal to the increase in the Consumer
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Price Index over the preceding twelve (12) month period for any
subsequent Renewal Term(s).
8 Intellectual Property Rights
8.1 General. The title and all Intellectual Property Rights in and
to the Application Software, Application Software Service, Sievo
Proprietary Data and any related materials, documentation,
information and media, including, but not limited to, any and
all enhancements released in accordance with Section 4.2,
Additional Software Releases, and other modifications, as well
as to any results of the Support Services and the Consulting and
Integrations Services, shall at all times exclusively belong to and
be retained by Sievo and/or its licensors. For sake of clarity, no
Intellectual Property Rights to the Background IP of a Party
shall be transferred to the other Party. Sievo provides to
Customer a non-exclusive, worldwide and fully paid up right
and license to use the reports extracted from the Application
Software with embedded Customer Data to Customer internal
business purposes. 8.2 Customer’s Data. The Customer retains
the title and all Intellectual Property Rights in and to the
Customer’s Data. The Customer grants Sievo a non-exclusive,
non-transferable, royalty-free right to (a) use the Customer’s
Data for the purposes of providing the Application Software
Service to the Customer; and (b) to prepare datasets, models
and information separate from the Customer’s Data by
anonymizing/generalizing Customer’s Data (such separate
datasets, models and information forming part of Sievo
Proprietary Data) and to use such data to develop algorithms,
models or derivative products, provided that such activities
ensure the ongoing security and confidentiality of the
Customer’s Data.
8.3 Feedback. In the event the Customer, at its sole discretion,
provides to Sievo any Feedback, Sievo shall have a royalty-free
right to use the Feedback for its product development
purposes.
9 TERM AND TERMINATION
9.1. Term. This Agreement will become effective at the Effective
Date defined in the Subscription Agreement. The initial term of
this Agreement the period from the Effective Date until
31.5.2027(the “Initial Term”) and the Agreement may be
renewed for successive one-year periods (each a “Renewal
Term”) upon placement by Customer of a new Purchase Order
(and acceptance of such Purchase Order by Sievo) prior to the
end of the Initial Term (or any Renewal Term, as applicable)
between the Parties, unless this Agreement is terminated in
accordance with this Section 9.
9.2 Termination. Each Party shall have the right to terminate
(completely or on module basis) this Agreement to expire at
the end of the Initial Term or any Renewal Term by providing
at least six (6) months prior written notice to the other Party
before the expiry of the Initial Term or any Renewal Term. All
Work Order(s) concluded under this Agreement shall survive
such termination for the terms specified therein unless
otherwise agreed by the Parties.
9.3 Termination due to Force Majeure. If the fulfillment of a
Party’s obligations under this Agreement is delayed for more
than three (3) months due to a Force Majeure Event, either
Party shall have the right to terminate the Agreement without
either Party having the right to claim damages for such
termination.
9.4 Termination or Suspension due to Insolvency or Breach.
Either Party shall have the right to terminate this Agreement
with immediate effect, in whole or in part, upon written notice
to the other Party, if the other Party (a) is declared bankrupt, is
put into liquidation or it otherwise ceases with its payments,
and/or (b) commits a material violation of the terms and
conditions of this Agreement, which includes any breach that
significantly affects the fulfillment of the contract’s
fundamental purposes, and, where material breach is
remediable, does not remedy such breach within thirty (30)
days of the written notice. Sievo may suspend the Application
Software Service and its performance of this Agreement or any
or all of the Work Order(s) without any liability if a payment has
fallen due under this Agreement and it has not been paid by
the Customer within sixty (60) days from due date. Sievo shall
resume the Application Software Service and the performance
after the Customer has paid all due amounts to Sievo.
9.5 Effects of Termination. Upon cancellation, expiry or
termination of this Agreement, the Customer shall remove and
delete all copies Sievo software components (if any) from its
network infrastructure. Upon cancellation, expiry or
termination of this Agreement Sievo shall not be obligated to
return any fees or amounts paid by the Customer to Sievo
before the cancellation, expiry or termination, unless the
cancellation, expiry or termination of this Agreement is
attributable to Sievo (I.e. in the situation that the cancellation
or termination of this Agreement is due to tort, wilful
misconduct or negligence by Sievo, in which case Sievo shall
refund on pro rata basis any advance payments made by the
Customer for services not yet provided within fourteen (14) days
from the termination or cancellation event). In the case of
cancellation, expiry or termination of this Agreement, Sievo
shall at Customer’s request provide Customer with the
Customer’s Data, unless otherwise required by applicable
legislation or regulation, and other reasonable termination
assistance. Sievo shall be entitled charge for the provision
termination assistance in accordance its applicable rates,
which in any case shall be previously approved by Customer.
9.6 Survival. The Sections 8.2, 10, 11, 12 and the terms and
conditions of this Agreement, which are meant to be in force
after the cancellation, expiry or termination of this Agreement,
shall survive the cancellation, expiry or termination of this
Agreement.
10 Limitations of Liability, No Warranty
10.1 General. The maximum liability for damages of a Party
towards the other Party based on this Agreement shall not,
excluding possible liquidated damages payable due to delay in
accordance with Section 6.5 above, exceed in aggregate 100 %
of the of the aggregated Annual Subscription Fee paid by
Customer during the Initial Term. With respect to damages
caused by a breach of confidentiality or data protection
obligations such as breach of Appendix 1 (Data Processing
Agreement), the maximum liability for damages of a Party
towards the other Party shall not exceed in aggregate 500 %
of the of the Annual Subscription Fee. Neither Party shall be
liable for any indirect or consequential damage. Indirect or
consequential damage include among others loss of profits or
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business or damage or loss caused as a result of interruptions
in business.
10.2 Exclusions. The limitations of liability shall not apply to
damages caused by wilful conduct or gross negligence,
infringement of intellectual property rights, to Sievo’s liability
under Section 11 (Intellectual Property Rights Indemnification)
below or breach by either Party of its obligations under Section
12 below.
10.3 No Warranty. Customer accepts that except as otherwise
expressly agreed in the Agreement, the Application Software
Service, the Support Service, the Consulting and Integration
Services and any other products and services provided by Sievo
under the Agreement are provided on “as is” and “as available”
basis. Except as otherwise expressly agreed in the Agreement,
Sievo makes no warranties, express or implied, and expressly
disclaims any implied and express warranties and conditions of
non-infringement, correctness, availability, merchantability,
and fitness for particular purpose.
11 Intellectual Property Rights Indemnification
Sievo warrants that the Application Software does not infringe
any intellectual property right enforceable. Sievo shall at its
own expense defend and indemnify the Customer against
claims and actions that the Application Software Service
infringes an intellectual property right of a third party, provided
that the Customer notifies Sievo promptly in writing of such
claims, and permits Sievo to defend or settle the claims, and
gives Sievo all reasonable information and assistance available.
If it is established that, or if in the justified opinion of Sievo, the
Application Software Service infringes an intellectual property
right of a third party, Sievo shall at its own expense either (i)
obtain the right to use of the Application Software Service for
the Customer, (ii) substitute the Application Software Service
with another product providing the same functionalities,
including eventual customizations and/or (iii) modify the
Application Software Service in order to eliminate the
infringement, maintaining the same functionalities and
customizations acquired by Customer. If none of the abovementioned alternatives is available to Sievo on reasonable
terms, the Customer shall, at the request of Sievo, stop
immediately using the Application Software Service, and Sievo
shall credit the Annual Subscription Fee paid by the Customer
for the Application Software Service less the proportion of the
price corresponding to the actual time of use. Sievo shall,
however, not be liable to Customer if the claim results from the
use of the Application Software Service in combination with
any data, product or software not supplied by Sievo, except if
otherwise agreed in Work Orders. This Section 11 states the entire
liability of Sievo and/or any of its affiliate companies and the
Customer’s sole and exclusive remedies for an infringement of
intellectual property rights.
12 Confidentiality
12.1 General. Each Party agree to regard and preserve as
confidential and secret, and the Confidential Information
received from the other Party, and may not use such
Confidential Information for any other purposes than those set
forth in the Agreement and only to the extent necessitated by
the Agreement. Each Party shall have the right to disclose the
said material and information to its employees, subcontractors
and/or advisors only on a need-to-know basis provided,
however, that they are obligated to keep the Confidential
Information in confidence and may not use them for any other
purpose than the purpose of this Agreement. Sievo Proprietary
Data and Modules constitutes Sievo’s (or as applicable, its
licensors’) valuable trade secret and shall be treated
confidential. The confidentiality obligation shall remain in
effect worldwide and perpetual, also after the termination of
this Agreement, unless to the extent that Confidential
Information (i) is generally available or otherwise public, (ii) was
received from a third party without any obligation of
confidentiality, (iii) was in the possession of the receiving Party
prior to receipt of the same from the other Party without any
obligation of confidentiality related thereto, (iv) has been
developed independently without using material or
information received from the other Party, and/or (v) which a
Party shall disclose pursuant to a law, decree or other order
issued by the authorities or a judicial order, provided, however,
that the Receiving Party has first given immediate notice to the
Disclosing Party and has made a reasonable effort to obtain a
protective order or other remedy from the court or tribunal that
the information so disclosed is used only for the purposes for
which the order was issued.
12.2 Residuals. However, each Party’s representatives shall be
entitled to use the professional skills and experience acquired
in connection with the delivery of the Application Software
Service, the Support Services and the Consulting and
Integration Services, since the professional skill or experience
acquired does not constitute an infringement to sections 11 and
12 of this Agreement.
13 Miscellaneous
13.1 Force Majeure. Except for payment obligations, neither
Party will be liable for failure to fulfil its obligation under this
Agreement due to Force Majeure Events. The word “Force
Majeure Event” means any circumstances beyond the
reasonable control of either Party which he cannot reasonably
be deemed to have contemplated at the time of the
conclusion of the Agreement and the consequences of which
he could not reasonably have avoided or overcome, including
but not limited to accident, explosion, fire, storm, earthquake,
flood, drought, the elements, strikes, lockouts, labour disputes,
riots, sabotage, terrorist acts, civil war or revolution, war, failure
or delay of transportation, the bankruptcy of any supplier, acts
of governments and their agencies, and governmental or their
agencies’ laws, regulations, rules, orders and decrees, or other
legislative, administrative or judicial mandates. A Force Majeure
Event suffered by a subcontractor of a Party shall also discharge
such Party from liability, if subcontracting from other source
cannot be made without unreasonable costs or significant loss
of time. The Party whose performance is affected shall
promptly advise the other Party in writing of any Force Majeure
Event as well as of its termination.
13.2 Subcontractors. Each Party shall have the right to
subcontract its obligations under this Agreement. Each Party
shall ensure that his subcontractor shall comply with the
confidentiality provisions specified in Section 12. Each Party
shall be liable for the work of its subcontractor as for its own.
13.3 Assignment. Neither Party may assign or transfer the rights
or obligations created through this Agreement without the
prior written consent of the other Party. However, (a) the Parties
shall be entitled to assign its receivables under this Agreement
Appendix 2
General Terms and Conditions March 1, .2022
Confidential © Sievo
to a third party, and (b) the Parties may assign this Agreement
and its rights and obligations under this Agreement to
Affiliated Company of the respective Party and to a company
to whom the respective Party’s business or its part is transferred.
13.4 Language, Notices. The governing language of this
Agreement and future communications shall be English.
Notices required under this Agreement shall be deemed
sufficient if made in writing and delivered personally (with an
initialled dated receipt), by registered mail (with return receipt
requested), or by e-mail (with return receipt) to the other Party
at the address shown in the beginning of this Agreement or at
that Party’s last known address. The Parties undertakes to notify
each other of any event of change in its address.
13.5 Severability. Each paragraph and provision of this
Agreement is severable, and if one or more paragraphs,
provisions or sections are declared invalid or unenforceable, the
remaining provisions of this Agreement will remain in full force
and effect, and if any provision is inapplicable to any person or
circumstance it shall nevertheless remain applicable to all
other persons and circumstances. The Parties undertake to
negotiate in good faith for the replacement of such provision
with a valid and enforceable provision. The failure of the Parties
to reach an agreement on a replacing provision shall not affect
the validity of the remaining part of this Agreement.
13.6 No Waiver. Any failure or delay by either Party in exercising
any right or remedy will not constitute a waiver. No waiver of
any term or condition of this Agreement or of any right or
remedy arising in connection therewith shall constitute a
continuing waiver.
13.7 No Agency. Nothing in this agreement shall be construed
as creating a partnership, agency, joint venture or any legal
entity between Sievo and the Customer. Sievo is not acting as
a representative or agent of any of the Parties with respect to
the Application Software Service.
13.8 Amendments. Except to the extent otherwise explicitly
provided in this Agreement, no modification of this Agreement
will be valid unless in writing and signed by a duly authorised
representative of both Parties. Notwithstanding the foregoing,
Sievo shall continuously improve and develop the Application
Software Service. Sievo may amend from time to time Sievo’s
Information Security Commitment
(https://hub.sievo.com/information-security-commitment),
Service Level Commitment (https://hub.sievo.com/servicelevel-commitment-eu), information on Partner Data
Enrichment Services (https://hub.sievo.com/partner-dataenrichment-services) and information on Personal Data Subprocessors (https://hub.sievo.com/personal-data-subprocessors) by notifying the Customer of any substantial
amendments in writing thirty (30) days prior the effective date
of the amendment. If the Customer does not accept the
amendment, the Customer shall be entitled to terminate this
Agreement on the effective date of the amendment by
notifying Sievo in writing before the effective date of the
amendment.
13.9 Governing Law and Dispute Resolution. This Agreement
shall be governed by the laws of Switzerland only, excluding
the United Nations Convention on Contracts for International
Sale of Goods. All disputes arising between the parties, whether
in connection with this agreement or otherwise, shall be
exclusively resolved by the ordinary courts of Basel-Stadt,
Switzerland.
13.10 Export and Other Restrictions. The Customer will not
provide any products (including access to the Application
Software Service) or any technical information obtained from
Sievo to any person, firm, company or governmental entity
when the Customer knows, or has reason to believe, that the
supply might indirectly or directly lead to a contravention of the
laws or regulations of Finland and the European Union, the
federal, state or municipal laws or regulations of the United
States of America or the country of origin of the product
applicable to the export, supply or use of goods, services or
technology. Sievo may suspend the Application Software
Service and its performance of the Agreement or any or all of
the Work Order(s) should there be a contravention or a threat
of contravention of the foregoing laws or regulations.
13.11 Reference. Sievo shall have the right to propose reference
calls with Customer as well as invite Customer to participate in
events to share its perception on the products.
// END OF GENERAL TERMS AND CONDITIONS //