MASTER SERVICES AND LICENCE AGREEMENT
This Master Services & Licence Agreement (the “Agreement”) is made as of [ ] (the “Effective Date”), by and
between Onalytica Ltd., (“Onalytica”) and [ ], (the “Customer”). Each of Onalytica and the Customer may be referred to
herein as a “Party” or collectively the “Parties.
WHEREAS, this Agreement contains the general terms and conditions governing the relationship between the
Parties and contemplates that during the Term the Customer may from time to time submit Order Form(s) purchasing
incremental document capacity in the Onalytica Enterprise Application Service.
NOW, THEREFORE, in consideration of mutual promises hereinafter set forth, it is agreed by and between the
Parties as follows:
1.
SCOPE AND DEFINITIONS. This Agreement
consists of these terms and conditions, Addendum A
(“Application Services Addendum”), Addendum B
(“Maintenance Services Terms and Conditions”), Exhibit
A (“Form of Order Form”) and all schedules attached
and/or referenced thereto, which are incorporated herein by
reference. Unless otherwise defined in this Section 1, the
capitalized terms used in this Agreement shall be defined in
the context in which they are used.
recorded by the Customer or by any supplier or licensor to
Customer, including without limitation, any social media
data, any on-line tracking data, any data collected in response
to surveys or any Personal Data, that is uploaded, stored,
analysed and made available to and through the Application
Services or the Onalytica Products.
1.6. “Documentation” means the documentation
provided by Onalytica relating to the Application Services
and/or the Onalytica Products.
1.1. “Application Services” means the limited online
1.7. “Hosted Facilities Services” means the availability
data processing and analysis functionality of the Onalytica
and
maintenance of certain software, servers, databases,
Products and all related features ordered by Customer,
connectivity
and other infrastructure in order to install,
operated by Onalytica and made available to Customer via
operate and maintain a Licence of the Onalytica Products,
the Onalytica Web Site.
which Hosted Facilities Services may be purchased by a
1.2. “Onalytica Products” means the object code licencee of the Onalytica Products as more particularly
version of Onalytica proprietary software applications described in an Order Form.
including all Updates, Upgrades, bug fixes and components
1.8. “Implementation Services” means the installation,
as identified on the applicable Order Form.
configuration and/or training services as specified in an
1.3. “Onalytica Web Site” means the Web sites Order Form.
accessible at the URL www.Onalytica.com.
1.9. “Intellectual Property Rights” means all trade
1.4. “Confidential
Information”
means:
any secrets, patents and patent applications, trade marks (whether
information or data (including information or data received registered or unregistered and including any goodwill
by the disclosing party from a third party and as to which the acquired in such trade marks), service marks, trade names,
disclosing party has confidentiality obligations) provided or business names, internet domain names, e-mail address
disclosed by disclosing party or its agents to receiving party names, copyrights (including rights in computer software),
that is: (i) fixed in a tangible medium and marked as the moral rights, database rights, design rights, rights in knowconfidential or proprietary information of the disclosing how, rights in confidential information, rights in inventions
party; (ii) otherwise provided or disclosed by or on behalf of (whether patentable or not) and all other intellectual property
the disclosing party marked as proprietary at the time the and proprietary rights (whether registered or unregistered,
information is provided; or (iii) not falling within any of the and any application for the foregoing), and all other
prior clauses of this sentence, but which, a reasonable person equivalent or similar rights which may subsist anywhere in
would conclude is of a confidential nature given the facts and the world..
circumstances of such disclosure or (iv) the Onalytica
1.10.
“Maintenance Services” means the
Products, the Application Services, the Hosted Facilities
maintenance
and
support services provided by Onalytica, as
Services and the Documentation.
The terms of this
Agreement shall constitute the Confidential Information of further described in Exhibit B.
both Parties.
1.11.
“Order Form” means a document signed
1.5. “Customer Content” means the data, media and by both Parties whereby the Customer orders one or more of
content (structured and unstructured) generated, collected or the following: (i) access to the Application Services, (ii) a
Onalytica Ltd.
Master Services and Licence Agreement
September 2012
Page 1
licence to the Onalytica Products, (iii) Implementation
Services, (iv) Maintenance Services or (v) any other products
or services to be offered by Onalytica pursuant to this
Agreement. Each Order Form shall be agreed upon by the
Parties as set forth in Section 2.
2.2. Direct Use. All Onalytica Products and/or Services
that may be provided by Onalytica pursuant to this
Agreement and an applicable Order Form shall be solely for
Customer’s business purposes and not for the benefit of any
third party.
1.12.
“Personal Data” shall mean any
information or data that alone or together with any other
information relates to an identified or identifiable natural
person or data considered to be personal data as defined
under applicable law.
2.3. General Restrictions. Customer shall not (i) use
the Services, any Onalytica Product, Documentation or Third
Party Content in any manner inconsistent with the
Documentation (and the rights expressly granted hereunder),
or with applicable laws and government regulations
(including without limitation, data privacy laws); (ii) use the
Services to store or transmit infringing, libelous, obscene,
threatening, or otherwise unlawful or tortious material,
including without limitation material harmful to children or
violating third party intellectual property or privacy rights;
(iii) assign, sublicence, sell, lease or otherwise transfer or
convey, or pledge as security or otherwise encumber its
rights under this Agreement; (iv) modify or create any
derivative works of the Services, the Onalytica Products (or
any software component thereof) or Documentation, except
with the prior written consent of Onalytica; (v) decompile,
disassemble, reverse engineer or otherwise attempt to obtain
or perceive the source code from which any component of
the Services or the Onalytica Products; (vi) copy the
Onalytica Products or Documentation other than for use on
up to two (2) archival or back-up servers solely for nonproduction purposes; (vii) submit any sensitive, individually
identifiable information to the Services, including but not
limited to social security numbers, government-issued
identification card numbers, financial account numbers
(including credit or debit card numbers and any related
security codes or passwords), health-related or medical
information, health insurance identification numbers, and
information in a health insurance application or claims
history; (viii) use the Services to store or transmit viruses,
worms, time bombs, Trojan horses and other harmful or
malicious code, files, scripts, agents or programs; or (ix)
interfere with or disrupt the integrity or performance of the
Services, Onalytica Product, Third Party Content or any
websites from which Third Party Content is derived.
Customer acknowledges and agrees that strict compliance
with this Section 2.3 is an essential basis of this Agreement.
1.13.
“Services”
means
collectively
or
individually, the Application Services, the Implementation
Service, the Hosted Facilities Services and/or the
Maintenance Services.
1.14.
in Section 7.1.
“Term” has the meaning given such term
1.15.
“Third Party Content” means all data,
social media content, posts, blogs, surveys, ratings, reviews,
feedback or any other information collected or otherwise
obtained from any website by Onalytica, including without
limitation, Facebook, Twitter and LinkedIn, and all data
derived thereof, such as reports, summaries, graphs and
charts.
1.16.
“Use Restrictions” means any use
restriction that is specifically agreed to in an Order Form,
which may include maximum annual Documents, authorised
sources, maximum capacity, maximum historical storage or
maximum through-put.
1.17.
A single “Document” means a piece of
digital content that is sent to or received by the Application
Services for processing and/or analysis. Documents shall
only be counted in whole number increments.
2.
ORDERS FOR ONALYTICA APPLICATION
SERVICES
2.1. Order Forms. During the Term, the Parties may
execute one or more Order Forms for access to the
Application Services, in which case the terms of Addendum
A in addition to this Agreement, will apply. The Parties shall
negotiate and sign each Order Form separately. Each Order
Form shall set out a description and fee schedule of the
applicable Services (including specific deliverables and
estimated time schedule, if any), payment terms and any
other additional terms that are agreed to by the Parties. Each
Order Form shall be attached to this Agreement and
incorporated in this Agreement by reference. In the event of
any conflict between the provisions of this Agreement and
the terms of any Order Form(s), the conflict shall be resolved
in the following order of priority of interpretation: (a) the
Order Form(s); and (b) this Agreement.
Onalytica Ltd.
Master Services and Licence Agreement
September 2012
2.4. No Implied Licences. Customer acknowledges that
there are no licences granted by implication under this
Agreement. Onalytica reserves all rights that are not
expressly granted. Customer acknowledges that, as between
the Parties, Onalytica owns all Intellectual Property Rights
and proprietary interests that are embodied in, or practiced
by, the Services, the Onalytica Products and the
Documentation. Any licence granted by Onalytica pursuant
to this Agreement is only for Intellectual Property Rights that
are owned by Onalytica or that Onalytica has a right to
sublicence.
Page 2
2.5. No Source Code. Customer acknowledges the
rights granted under this Agreement with respect to the
Services or the Onalytica Products are intended to apply only
to the compiled, object code format of the software, and are
not intended as licences to obtain or use any source code for
any Onalytica Products.
2.6. Ownership. Unless otherwise expressly stated
herein, Onalytica retains and reserves all right, title and
interest in and to the Services, the Onalytica Products or the
Documentation and all Intellectual Property Rights therein,
and Customer acknowledges that it neither owns nor acquires
any additional rights in and to the foregoing not expressly
granted by this Agreement.
Customer further agrees to obtain the right to allow Onalytica
to copy, store, process, analyse and display such Customer
Content through the Application Services, the Hosted
Facilities Services and/or Onalytica Products and hereby
grants to Onalytica a non-exclusive, non-transferable right
and licence to use the Customer Content during the Term for
the limited purposes of performing Onalytica’s obligations
under this Agreement and to collect and use any such data, in
non-user specific and aggregated statistical form, for the
development and maintenance of the Onalytica Products or
Services and for Onalytica’s other business purposes.
Customer hereby represents and warrants that it owns or
otherwise has sufficient right to grant Onalytica access to and
use of the Customer Content in accordance with the terms of
this Agreement. Customer shall be solely responsible for, and
assumes the risk of, any problems resulting from, the content,
accuracy, completeness, consistency integrity, legality,
reliability, and appropriateness of all Customer Content.
Onalytica shall not be responsible or liable for the deletion,
correction, destruction, damage, loss or failure to store any
Customer Content.
2.7. Licence Control. Customer acknowledges and
agrees that (i) the Onalytica Products may contain code or
require devices that detect or prevent unauthorised use of, or
disable, the Onalytica Products, and (ii) it will provide
Onalytica reasonable access to the automated audit logs
maintained by the Onalytica Products. Customer shall not
avoid, circumvent, or disable any security device, procedure,
protocol, or mechanism that Onalytica may include, require
4.2. Third Party Content. Customer acknowledges
or establish with respect to the Onalytica Products.
that: (a) Onalytica does not have any ownership rights in or
to the Third Party Content; (b) the Third Party Content may
2.8. Branding. Customer shall not delete, alter, cover,
be protected by third party intellectual property or privacy
or distort any copyright, trademark, any printed or on-screen
rights, and therefore Customer shall not rent, lease, loan, sell,
proprietary or legal notice, or other proprietary rights notice licence, distribute, make available, copy or create derivative
placed by Onalytica on or in the Onalytica Products and works based on the Third Party Content unless Customer has
Documentation, and shall ensure that all such notices are
obtained written authorization to do so from the applicable
reproduced on all copies of the Onalytica Products and
rights-holder; and (c) some Third Party Content may be
Documentation.
indecent, offensive, inaccurate or otherwise objectionable or
unlawful, and Onalytica shall have no obligation to preview,
3.
CUSTOMER RESPONSIBLITIES.
verify, flag, modify, filter or remove any Third Party Content
3.1. Authorised Users. Customer shall not authorise (although Onalytica may do so in at its sole discretion), nor
access to or permit use of the Services, the Onalytica shall Onalytica be responsible for any failure to remove, or
Products or Documentation by persons other than employees for any delay in removing, harmful, inaccurate, unlawful or
of the Customer, and Customer shall be responsible for otherwise objectionable Third Party Content; and (d)
compliance with this Agreement by its employees, or any Customer’s use of the Third Party Content is at Customer’s
unauthorised user to whom Customer has either directly or sole risk and Onalytica shall have no responsibility to
Customer or any third party related to any use of the Third
indirectly granted access to the Services.
Party Content by Customer or any user.
3.2. Passwords and Access Protocols. Customer and
(a) Terms of Use and Privacy Policies. To the
its authorised users shall be responsible for maintaining the
confidentiality and security of all passwords and other access extent Customer accesses or uses any Third Party Content
protocols required in order to access the Onalytica Products, from a provider in the course of using the Application
Application Services and the Hosted Facilities Service, if Services, the Hosted Facilities Services or Onalytica
Products, the Customer shall adhere to the terms of service
applicable.
and privacy policies that are published on such provider’s
4.
CUSTOMER AND THIRD PARTY CONTENT. website.
4.1. Customer Content. Prior to storing, processing or
distributing any Customer Content using the Application
Services, the Hosted Facilities Services or Onalytica
Products, Customer shall, at its own expense, obtain all third
party consents and/or permissions that may be necessary and
appropriate with respect to such Customer Content.
Onalytica Ltd.
Master Services and Licence Agreement
September 2012
(b) Availability of Third Party Content. If the
provider of any Third Party Content ceases to make the Third
Party Content available for collection, aggregation, provision
and/or distribution in connection with the Application
Services or the Hosted Facilities Services on terms
acceptable to Onalytica, Onalytica may cease providing such
Page 3
Third Party Content without entitling Customer to any taxing authorities, or such other evidence as Onalytica may
refund, credit, or other compensation.
reasonably request, to establish that such taxes have been
paid.
(c) No Warranties. Onalytica does not provide
any warranty or support under this Agreement for any non6.4. Late Payments; Interest. Any portion of any
Onalytica products or services, including without limitation amount payable hereunder that is not paid when due will
to Third Party Content.
accrue interest at one and one-half percent (1.5%) per month
or the maximum rate permitted by applicable law, whichever
5.
OTHER SERVICES
is less, from a date thirty (30) days after the due date until
paid.
5.1. Implementation Services. Customer understands
and acknowledges that use of the Onalytica Products, the 7.
TERM AND TERMINATION.
Hosted Facilities Services and/or the Application Services by
the Customer may require Implementation Services,
7.1. Term. The term of this Agreement will commence
including, by way of example, configuration or on the Effective Date and will continue for a period of three
customisation, training of Customer personnel, or provision (3) years thereafter, unless earlier terminated in accordance
of technical support. All Implementation Services that the with this Section 7 (the “Initial Term”), and will
Customer may choose to order shall be set forth in an Order automatically renew for successive one (1) year terms (each,
Form.
a “Renewal Term”), unless either Party provides written
notice of its desire not to renew at least thirty (30) days prior
5.2. Other Professional Services. Customer may elect to the expiration of the then-current term (the Initial Term,
to order additional professional services from Onalytica on a together with any Renewal Terms, collectively, the “Term”).
time and materials basis. All such professional services will
7.2. Termination for Breach. Either Party may, at its
be set forth in an Order Form and will be billed at then
option, terminate this Agreement in the event of a material
current hourly rates.
breach by the other Party. Such termination may be effected
6.
FEES AND EXPENSES; PAYMENTS.
only through a written notice to the breaching party,
specifically identifying the breach or breaches on which such
6.1. Fees. In consideration for the rights granted to notice of termination is based. The breaching Party will have
Customer and the Services performed by Onalytica under this a right to cure such breach or breaches within thirty (30) days
Agreement, Customer will pay to Onalytica, without offset or of receipt of such notice, and this Agreement will terminate
deduction, all fees required by an Order Form. Onalytica in the event that such cure is not made within such thirty
will submit invoices to Customer with respect to such fees (30)-day period.
according to the relevant payment schedules indicated on the
applicable Order Form, and each invoiced amount will be
7.3. Termination Upon Bankruptcy or Insolvency.
due and payable upon receipt of the relevant invoice by Customer shall immediately give written notice to Onalytica
Customer. Notwithstanding the foregoing, any initial fees and Onalytica may, at its option, terminate this Agreement
listed on a particular Order Form shall be due and payable immediately upon written notice to Customer, in the event (i)
upon execution of the applicable Order Form, without that Customer becomes insolvent or unable to pay its debts
additional invoice.
when due; (ii) the other Party discontinues it business; or (iii)
a receiver is appointed or there is an assignment for the
6.2. Expenses.
Out-of-pocket expenses, including benefit of such other Party’s creditors.
reasonable expenses incurred for non-local travel of
Onalytica personnel in connection with this Agreement, will
7.4. Effect of Termination. Upon any termination of
be invoiced to Customer monthly.
this Agreement, Customer will (a) immediately discontinue
all use of the Application Services, the Onalytica Product and
6.3. Taxes. All fees under this Agreement are net of any Onalytica Confidential Information; and (iii) promptly
sales, use and other taxes and all applicable export and pay to Onalytica all amounts due and payable under this
import fees, customs duties and similar charges (other than Agreement.
taxes based on Onalytica’s income). Customer will be
responsible for payment of any applicable Taxes and any
7.5. Survival. The provisions of Sections 2.2, 2.3, 2.4,
related penalties and interest for the rights hereunder, or the 2.5, 2.6, 2.7, 4, 6, 7.5, 8, 9, 10, 11 and 12 will survive the
delivery of related services. Customer will make all required termination of this Agreement.
payments to Onalytica free and clear of, and without
CONFIDENTIAL INFORMATION.
reduction for, any withholding taxes. Any such taxes 8.
imposed on payments to Onalytica will be Customer’s sole
8.1. Ownership of Confidential Information. The
responsibility, and Customer will, upon Onalytica’s request,
provide Onalytica with official receipts issued by appropriate Parties acknowledge that during the performance of this
Onalytica Ltd.
Master Services and Licence Agreement
September 2012
Page 4
Agreement, each Party will have access to certain of the other
8.4. Limitation Period. The obligations set forth in this
Party’s Confidential Information or Confidential Information Section 8 shall survive the termination or expiration of this
of third parties that the disclosing Party is required to Agreement for a period of two (2) years.
maintain as confidential. Both Parties agree that all items of
REPRESENTATIONS AND WARRANTIES.
Confidential Information are proprietary to the disclosing 9.
Party or such third party, as applicable, and will remain the
9.1. Each Party hereby represents and warrants (i) that it
sole property of the disclosing Party or such third party.
is duly organised, validly existing and in good standing under
8.2. Mutual Confidentiality Obligations. Each Party the laws of its jurisdiction of incorporation or organisation;
agrees as follows: (a) to use Confidential Information (ii) that the execution and performance of this Agreement
disclosed by the other Party only for the purposes described will not conflict with or violate any provision of any law
herein; (b) that such Party will not reproduce Confidential having applicability to such Party; and (iii) that this
Information disclosed by the other Party, and will hold in Agreement, when executed and delivered, will constitute a
confidence and protect such Confidential Information from valid and binding obligation of such Party and will be
dissemination to, and use by, any third party; (c) that neither enforceable against such Party in accordance with its terms.
Party will create any derivative work from Confidential
9.2. Customer represents and warrants that it will not
Information disclosed to such Party by the other Party; (d) to
and
will not permit any other person to upload, post, store,
restrict access to the Confidential Information disclosed by
view, transmit, distribute or otherwise publish through the
the other Party to such of its personnel, agents, and/or
Application Services or the Hosted Facilities Services any
consultants, if any, who have a need to have access and who
Customer Content or Third Party Content that (i) restricts or
have been advised of and have agreed in writing to treat such
inhibits any other person from using and enjoying the
information in accordance with the terms of this Agreement;
and (e) to the extent practicable, return or destroy, all Application Services, the Hosted Facilities Services or the
Confidential Information disclosed by the other Party that is Onalytica Products, (ii) is unlawful, threatening, harassing,
abusive, libelous, defamatory, obscene, vulgar, offensive,
in its possession upon termination or expiration of this
pornographic, profane, sexually explicit, invasive of
Agreement. Notwithstanding the foregoing, Customer agrees
another’s privacy, hateful, tortuous or indecent; (iii)
that Onalytica may collect aggregated statistical data
regarding Customer’s use of the Services and provide such constitutes or encourages conduct that would constitute a
aggregated statistical data to third parties. In no event shall criminal offense, give rise to civil liability or otherwise
violate any applicable local, state, national or international
Onalytica provide to third parties specific data regarding
law; (iv) violates, plagiarizes, or infringes the rights of third
Customer or Customer’s authorised users.
parties, including, but not limited to, intellectual property
8.3. Confidentiality Exceptions. Notwithstanding the rights, rights of privacy or publicity or any other proprietary
foregoing, the provisions of Sections 8.1 and 8.2 will not rights; (v) contains any viruses, Trojan horses, worms, time
apply to Confidential Information that (a) is publicly bombs, cancelbots, or other harmful components that are
available or in the public domain at the time disclosed; (b) is intended to damage, detrimentally interfere with,
or becomes publicly available or enters the public domain surreptitiously intercept or expropriate any system, data or
through no fault of the recipient; (c) is rightfully personal information, (vi) constitutes or contains false or
communicated to the recipient by persons not bound by misleading indications of origin or statements of fact; or (vii)
confidentiality obligations with respect thereto; (d) is already would harm minors in any way.
in the recipient’s possession free of any confidentiality
9.3. Disclaimer. Except as expressly represented or
obligations with respect thereto at the time of disclosure; (e)
warranted in Section 9, to the maximum extent permitted by
is independently developed by the recipient; or (f) is
applicable law, the application service, the hosted facilities
approved for release or disclosure by the disclosing Party
services, the Onalytica products and all Services performed
without restriction. Notwithstanding the foregoing, each
Party may disclose Confidential Information to the limited by Onalytica are provided “AS IS”, and Onalytica disclaims
extent required (x) in order to comply with the order of a any and all other promises, representations and warranties,
whether express or implied, including but not limited to, any
court or other governmental body, or as otherwise necessary
implied warranties of merchantability, fitness for a particular
to comply with applicable law, provided that the Party
purpose, non infringement, quiet enjoyment, system
making the disclosure pursuant to the order shall first have
integration and/or data accuracy. Onalytica does not warrant
given written notice to the other Party and made a reasonable
effort to obtain a protective order; or (y) to establish a Party’s that the application service, the hosted facilities services, the
rights under this Agreement, including to make such court Onalytica products or any other services provided by
Onalytica will meet the Customer’s requirements or that the
filings as it may be required to do.
operation of the application service, the hosted facilities
services of the Onalytica products, will be uninterrupted or
error free, or that all errors will be corrected.
Onalytica Ltd.
Master Services and Licence Agreement
September 2012
Page 5
10.
INDEMNIFICATION.
10.1.
Indemnification of Customer. Onalytica
agrees to indemnify, defend and hold harmless Customer
from and against any and all losses, liabilities, costs,
expenses (including reasonable attorneys’ fees) or damages
resulting from any claim by any third party that the
authorised use of the Application Service, the Hosted
Facilities Services, the Onalytica Product and/or the
Documentation infringes such third party’s UK patents issued
as of the Effective Date, or infringes or misappropriates, as
applicable, such third party’s copyrights or trade secret rights
under applicable laws of any jurisdiction within the United
Kingdom. If such a claim is made or appears possible,
Customer agrees to permit Onalytica, at Onalytica’s sole
discretion, to: (a) enable Customer to continue to use the
Application Service, the Hosted Facilities Services, the
Onalytica Product or the Documentation, as applicable; (b) to
modify or replace any such infringing material to make it
non-infringing; or (c) require Customer to cease use of, and,
if applicable, return, such materials as are the subject of the
infringement claim. This Section 10.1 shall not apply if the
alleged infringement, violation or misappropriation arises, in
whole or in part, from: (i) modification of the Application
Service, the Hosted Facilities Services, the Onalytica Product
or the Documentation by Customer; (ii) combination,
operation or use of the Application Service, the Hosted
Facilities Services or the Onalytica Products with other
software, hardware or technology not provided by Onalytica;
or (iii) the collection, use, storage, sharing, analysis or
distribution of the Customer Content or any Third Party
Content. This Section states Onalytica’s entire obligation
and liability with respect to any claim of infringement,
misappropriation or violation of any Intellectual Property
Right.
(provided, however, that failure of Indemnified Party to
provide such notice will not release the Indemnifying Party
from any of its indemnity obligations except to the extent that
the Indemnifying Party’s ability to defend such claim is
prejudiced thereby), (ii) reasonably cooperate in the defense
or settlement of any such claim, demand or action, at the
expense of the Indemnifying Party; and (iii) give the
Indemnifying Party sole control over the defense or
settlement of any such claim; provided, however, the
Indemnifying Party shall not enter into any settlement
without the Indemnified Party’s express consent that (1)
assigns, imparts or imputes fault or responsibility to the
Indemnified Party or its affiliates, (2) includes a consent to an
injunction or similar relief binding upon the Indemnified
Party or its affiliates, (3) fails to contain reasonable
confidentiality obligations protecting the confidentiality of
the settlement, or (4) provides for relief other than monetary
damages that the Indemnifying Party solely bears.
11.
EXCLUSIONS
LIABILITY.
AND
LIMITATIONS
OF
11.1.
Exclusions of Remedies; Limitation of
Liability. In no event will either party be liable to the other
party for any incidental, indirect, special, consequential or
punitive damages, regardless of the nature of the claim,
including, without limitation, lost profits, costs of delay, any
failure of delivery, business interruption, costs of lost or
damaged data or liabilities to third parties arising from any
source, even if a party has been advised of the possibility of
such damages. This exclusion of certain damages and claims
is intended to apply without regard to whether other
provisions of this agreement have been breached or have
proven ineffective. Except for indemnification obligations or
for any losses or liabilities incurred as a result of a material
breach of Section 8 (Confidentiality). The cumulative
liability of either party to the other party for all claims arising
from or relating to this agreement, including, without
limitation any cause of action sounding out in contract,
TORT, or strict liability, will not exceed the total amount of
all fees paid to Onalytica by the customer during the Twelve
(12) month period prior to the act, omission or occurrence
giving rise to such liability. This limitation of liability is
intended to apply without regard to whether other provisions
of this agreement have been breached or have proven
ineffective
10.2.
Customer’s Indemnity Obligations.
Customer agrees to indemnify, defend and hold harmless
Onalytica from and against any and all losses, liabilities,
costs, expenses (including reasonable attorneys’ fees) or
damages resulting from any claim by any third party based
upon or arising from (a) Customer’s gross negligence or
willful misconduct; (ii) Customer’s handling of any warranty
claim from a customer of Customer; (iii) claims of
infringement, misappropriation or violation of any third-party
proprietary right, including copyright, patent, trade secret,
right of publicity, right of privacy, and trademark rights,
11.2.
Essential Basis of the Agreement.
arising from the use, storage, retransmission and analysis of
Customer
acknowledges
and understands that the
any Customer Content or (iv) claims based upon a breach of
disclaimers,
exclusions
and
limitations
of liability set forth in
Section 4.
this Section 11 form an essential basis of the agreement
10.3.
Indemnification Procedures. With respect between the Parties, that the Parties have relied upon such
to any claim, demand or action for which an indemnity is disclaimers, exclusions and limitations of liability in
provided under this section, the party to be indemnified (the negotiating the terms and conditions in this Agreement, and
“Indemnified Party”) shall: (i) give prompt written notice to that absent such disclaimers, exclusions and limitations of
the indemnifying party (the “Indemnifying Party”) of the liability, the terms and conditions of this Agreement would
claim, demand or action for which an indemnity is sought be substantially different.
Onalytica Ltd.
Master Services and Licence Agreement
September 2012
Page 6
12.4.
Amendments; Modifications.
This
Agreement may not be amended or modified except in a
12.1.
Entire Agreement. This Agreement sets writing duly executed by authorised representatives of both
forth the entire agreement and understanding between the Parties.
Parties with respect to the subject matter of this Agreement
and, supersedes and merges all prior oral and written
12.5.
Assignment; Delegation. Customer shall
agreements, discussions and understandings between the not assign any of its rights or delegate any of its duties under
Parties with respect to the subject matter of this Agreement, this Agreement without the express, prior written consent of
and neither of the Parties will be bound by any conditions, Onalytica, and, absent such consent, any attempted
inducements or representations other than as expressly assignment or delegation will be null, void and of no effect.
provided for in this Agreement.
12.6.
No Third Party Beneficiaries.
The
12.2.
Independent Contractors. In making and Parties acknowledge that the covenants set forth in this
performing this Agreement, Customer and Onalytica act and Agreement are intended solely for the benefit of the Parties,
will act at all times as independent contractors, and, except as their successors and permitted assigns. Nothing herein,
expressly set forth herein, nothing contained in this whether express or implied, will confer upon any person or
Agreement will be construed or implied to create an agency, entity, other than the Parties, their successors and permitted
partnership or employer and employee relationship between assigns, any legal or equitable right whatsoever to enforce
them. Except as expressly set forth herein, at no time will any provision of this Agreement.
either Party make commitments or incur any charges or
12.7.
Severability. If any provision of this
expenses for, or in the name of the other Party.
Agreement is invalid or unenforceable for any reason in any
12.3.
Notices. All notices required by or relating jurisdiction, such provision will be construed to have been
to this Agreement will be in writing and will be sent by adjusted to the minimum extent necessary to cure such
means of certified mail, postage prepaid, to the Parties at invalidity or unenforceability.
The invalidity or
their respective addresses below, or addressed to such other unenforceability of one or more of the provisions contained
address as the receiving Party may have given by written in this Agreement will not have the effect of rendering any
notice in accordance with this provision.
such provision invalid or unenforceable in any other case,
circumstance or jurisdiction, or of rendering any other
Customer:
______________________________
provisions of this Agreement invalid or unenforceable
whatsoever.
______________________________
12.8.
Waiver. No waiver under this Agreement
[TBD]
will be valid or binding unless set forth in writing and duly
executed by the Party against whom enforcement of such
Onalytica:
Onalytica Ltd.
waiver is sought. Any such waiver will constitute a waiver
29th Floor
only with respect to the specific matter described therein and
Centre Point, 103 New Oxford Street
will in no way impair the rights of the Party granting such
London, WC1A 1DD, UK
waiver in any other respect or at any other time. Any delay
Phone: +44 207 407 7642
or forbearance by either Party in exercising any right
Facsimile: +44 207 836 5691
hereunder will not be deemed a waiver of that right.
12.
MISCELLANEOUS.
Attn: Chief Operating Officer
All notices required by or relating to this Agreement may
also be communicated by facsimile, provided that the sender
receives and retains confirmation of successful transmittal to
the recipient. Such notices will be effective on the date
indicated in such confirmation. In the event that either Party
delivers any notice by means of facsimile transmission in
accordance with the preceding sentence, such Party will
promptly thereafter send a duplicate of such notice in writing
by means of certified mail, postage prepaid, to the receiving
Party, addressed as set forth above or to such other address as
the receiving Party may have previously substituted by
written notice to the sender.
Onalytica Ltd.
Master Services and Licence Agreement
September 2012
12.9.
Force Majeure. If a Party is prevented or
delayed in performance of its obligations hereunder
(excluding payment obligations) as a result of circumstances
beyond such Party’s reasonable control, including, by way of
example, war, riot, fires, floods, epidemics, or failure of
public utilities or public transportation systems, such failure
or delay will not be deemed to constitute a material breach of
this Agreement, but such obligation will remain in full force
and effect, and will be performed or satisfied as soon as
reasonably practicable after the termination of the relevant
circumstances causing such failure or delay, provided that if
such Party is prevented or delayed from performing for more
than ninety (90) days, the other Party may terminate this
Agreement upon thirty (30) days’ written notice.
Page 7
12.10.
Governing Law. This Agreement will be
governed by and interpreted in accordance with the laws of
England and Wales, without regards to conflicts of law
principles thereof or to the United Nations convention on the
international sale of goods. To the fullest extent permitted by
law, each Party hereby expressly waives (on behalf of itself
and on behalf of any person or entity claiming through such
Party) any right to a trial by jury in any action, suit,
proceeding, or counterclaim of any kind arising out of or in
any manner connected with this Agreement or the subject
matter hereof.
12.11.
Counterparts. This Agreement may be
executed in any number of counterparts, each of which when
so executed will be deemed to be an original and all of which
when taken together will constitute one Agreement.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be executed by its duly authorised
representative.
ONALYTICA LTD.
CUSTOMER
By: _______________________________
By: _______________________________
Name: _____________________________
Name: _____________________________
Title: ______________________________
Title: ______________________________
Date: ______________________________
Date: ______________________________
Onalytica Ltd.
Master Services and Licence Agreement
September 2012
Page 8
ADDENDUM A
MASTER SERVICES AND LICENCE AGREEMENT
APPLICATION SERVICES
This APPLICATION SERVICES ADDENDUM (the “Application Services Addendum”) is an addendum to,
and is hereby incorporated into, the Master Services and Licence Agreement between Onalytica and Customer and any other
terms and conditions incorporated therein (collectively, the “Agreement”) and applies only in the event the Customer agrees
in a mutually executed Order Form to purchase access to the Application Services
1.
ADDITIONAL DEFINITIONS.
Capitalized
terms used in this Application Services Addendum that are
not otherwise defined in this Addendum have the meaning
set forth in the Agreement.
1.1. “Access Protocols” shall have the meaning given
such term in Section 2.2 of this Application Services
Addendum.
1.2. “Access Rights” are contractual rights to access
and use the Application Services according to the technical
procedures and protocols established according to this
Agreement.
1.3. “Access Term” shall have the meaning given such
term in the Order Form.
2.
ACCESS TO APPLICATION SERVICES
2.1. Provision of Access to the Application Services.
Subject to the terms and conditions contained in the
Agreement, including without limitation, the Use
Restrictions and during the Access Term, Onalytica hereby
grants to Customer a non-exclusive, non-transferable right
to (i) upload Customer Content to the Application Services
and have the Application Service process such Customer
Content as agreed to in the applicable Order Form, and (ii)
otherwise access and use the Application Services solely in
accordance with applicable Documentation and solely for
the internal business purposes of Customer. Onalytica
reserves the right to modify the software, including the
Onalytica Products underlying the Application Services, at
any time and agrees to use commercially reasonable efforts
to notify Customer of any such modifications to the extent
that such modifications affect functionality. Customer
understands that this Agreement grants certain rights of
access only, and that nothing in this Agreement may be
interpreted to require delivery of a copy of any of the
Onalytica Products to Customer or installation of a copy of
such Onalytica Products upon any computers or systems
under Customer’s control.
Onalytica Ltd.
Master Services and Licence Agreement
September 2012
2.2. Procedures and Technical Protocols. Onalytica
will specify to Customer procedures according to which
Customer may establish and obtain access to and use the
features and functions of the Application Services,
including, without limitation, provision of any access codes,
passwords, technical specifications, connectivity standards
or protocols, or any other relevant procedures, to the limited
extent any of the foregoing may be necessary to enable
Customer to obtain access to the Application Services via
the Internet (together with relevant portions of the
Documentation, the “Access Protocols”).
3.
OBLIGATIONS
3.1. Responsibility for Providing the Application
Service. As between the Parties, Onalytica will bear
responsibility, at its own expense, for operating the
hardware and software necessary to provide the Application
Services through the Onalytica Web Site, provided that
Customer will be responsible for procuring and/or operating
computer systems, software and telecommunications
services meeting such minimum technical requirements as
Onalytica may specify, as necessary for Customer to obtain
access to the Application Service as hosted by Onalytica.
3.2. Employee Access to Application Services.
Customer may permit its employees to access and use the
features and functions of the Application Service as
contemplated by this Application Services Addendum and
the Agreement. Customer will ensure that any such
individual will be bound by a contractual, enforceable
agreement, which agreement, will, by its terms, provide
substantially the same or greater protections for Onalytica’s
Confidential Information, the Application Service, and the
Documentation as are provided by the terms hereof.
4.
LIMITATIONS OF WARRANTY AND
LIABILITY. Customer acknowledges that this Addendum
is subject to all disclaimers and limitations or liability set
forth in the Master Services and Licence Agreement.
Page 9
5.
SERVICE LEVEL STANDARDS. The following defines service level standards for the Application Services:
Service/Activity
Availability of
the Application
Services
Restore Time
Resolution of
Critical
Malfunction
Service Level
The Application Services will be available to users for normal use
98.00% of the time each month during the hours 9:00 a.m. Monday
through to 7:00 a.m. Saturday, not including scheduled downtime.
Scheduled downtime shall be for regular maintenance and upgrades, and
will be communicated with at least 24 hours of notice. Any downtime
that might require more than 2 hours will be scheduled at least 7 days in
advance. Outside of these hours the Application Services may still be
available but are not governed by Service Levels.
In the event of unscheduled downtime the system shall be restored to a
fully operational state within 48 hours.
Failure to comply with the requirements with respect to Critical
malfunctions in a month.
*
Onalytica Ltd.
Master Services and Licence Agreement
September 2012
*
*
Service Level Credit
1% of the recurring monthly
fee for the Application
Services for the month of the
failure.
1% of the recurring monthly
fee for the Application
Services for the month of the
failure.
1% of the recurring monthly
fee for the Application
Services for the month of the
failure.
*
Page 10
ADDENDUM B
MASTER SERVICES AND LICENCE AGREEMENT
MAINTENANCE SERVICES
Onalytica shall provide the following “Maintenance Services” for the Onalytica Products and Application Services:
1.
1.1.
Telephone / Email. Onalytica will provide reasonable telephone and / or email support for problem determination
and resolution during Onalytica’s normal working hours of 9:00 a.m. to 5:30 p.m., Monday through Friday, Greenwich Mean
Time, excluding UK Bank Holidays, for problems arising either during software development or production deployments
involving Application Services. Onalytica may require Customer to provide a written assistance request to properly
document the problem.

Support Phone Number:
0207 407 7642

Support Email Address:
support@Onalytica.com
1.2.
Updates and Upgrades. Onalytica will, from time to time, make available to Customer corrections and minor
modifications to existing features of the Application Services (“Updates”) and improvements that provide additional
functionality to the Application Services (“Upgrades”) at no additional cost to Customer. Nothing here shall require
Onalytica to make Upgrades or to make Updates except as provided herein. Update and Upgrades will be treated as
Application Services and subject to the same restrictions, terms and conditions contained in the Agreement.
1.3.
Error Correction. Onalytica will make commercially reasonable efforts to correct reproducible or proven errors in
the Application Services (excluding customisations such as custom reports or application extensions) as provided by
Onalytica (and not including any software written or modified by Customer) according to the following schedule (for the
purposes hereof an “error” means a failure of the Application Services to perform substantially as provided in the
Documentation):
Severity
Description
Acknowledgement
Updates
Resolution
Closure
Emergency
Catastrophic product, module, or
operational failures without a viable
work around.
1 business hour
Every 3
business
hours
1 business
day
7 days
Critical
Substantiated defects which are a
serious inconvenience to the end user.
4 business hours
Daily
2 business
days
14 days
Non-critical
All defects which the end user can easily
avoid or work around.
2 business days
NA
10 business
days
Next
Release

Acknowledgement consists of an acknowledgement to the Customer, either in email or by phone as to the receipt
of the problem as reported and a confirmation of the problem severity. Onalytica will begin the process of
problem determination and resolution at this point.

Status Updates consist of regular communications, either via email or phone as to the status of the problem
determination and resolution.

Resolution consists of providing, as appropriate, one of the following to Customer: an existing correction; a new
correction; a viable detour or work around; or a plan on how the problem will be corrected.

Closure consists of providing, as necessary, a final correction or work around of the defect including Updates of
the Application and revised or new Documentation.

Severity Classification: Customer shall be entitled to qualify and classify the Error in its good faith, reasonable
judgment. If Onalytica reasonably determines, in good faith, that a previously reported and in progress issue’s
Onalytica Ltd.
Master Services and Licence Agreement
September 2012
Page 11
severity needs to be re-classified or escalated, Onalytica will continue to resolve such issue according to the
classification assigned by Customer and the parties will attempt to mutually determine, in good faith, whether the
issue was misclassified by Customer. In the event the parties or a third party arbiter mutually selected by the
parties determines that the issue was misclassified, the parties or such arbiter shall mutually agree on the
appropriate remedy therefore, provided that such remedy shall not exceed the out of pocket costs and expenses
actually incurred by Onalytica in resolving such issue according to the higher classification that would have been
avoided had Onalytica resolved the issue according to the appropriate classification.
2.
Support Services by Designated Parties. Onalytica may designate third parties including distributors, OEMs, or
VARs to provide any of the Maintenance Services identified in this agreement, although Onalytica will remain
responsible to Customer for the performance of all Maintenance Services.
3.
Customer’s Obligations for Support Services. Customer will designate up to four (4) Contact Person(s) (or such
other replacement individuals as Customer may designate in writing) who shall be the sole contacts for the
coordination and receipt of the Maintenance Services set forth in these terms and conditions. Each Contact Person
shall be knowledgeable about the Application Services and shall attend Onalytica’s software training. Customer
will be responsible for installing any error correction, Update, and Upgrade, if any, unless otherwise agreed between
the parties.
Onalytica Ltd.
Master Services and Licence Agreement
September 2012
Page 12
EXHIBIT A
MASTER SERVICES AND LICENCE AGREEMENT
FORM OF ORDER FORM
Onalytica Ltd.
Master Services and Licence Agreement
September 2012
Page 13