SaaS Terms of Use

IMPORTANT – PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING ATS SOFTWARE!

These Software as a Service (SaaS) Terms of Use constitute the legal agreement between CUSTOMER and ATS (either directly with ATS or indirectly through a Partner) governing CUSTOMER’s purchase and use of proprietary Products and Services, as identified in an Order. These SaaS Terms of Use shall be interpreted and applied in accordance with, and capitalized terms shall have the meanings given under Section 1.

Note that by executing an Order, by checking the “I Agree to the License Agreement & Privacy Policy” box, including the ATS cookie and security policy, or by accessing or otherwise using the SaaS Services, CUSTOMER signifies acceptance of, and agrees to be bound unconditionally, by these SaaS Terms of Use. If the individual accepting this Agreement is accepting on behalf of a company or other entity, such individual represents that they have authority to bind such entity to this Agreement.

The applicability of any general terms and conditions of CUSTOMER or Partner to any quote, Order or other agreement, said negotiations or the relationship in general, is hereby excluded. Regardless of their form, deviations from or supplements to the Agreement shall only apply if parties explicitly agree to the same in writing.

ATS may from time to time amend the SaaS Terms of Use (as published on the Website). Unless otherwise specified by ATS, changes become effective for CUSTOMER upon renewal of the then-current Subscription Period or upon the effective date of a new Order after ATS publishes an updated version of this Agreement.

1. INTERPRETATION AND DEFINITIONS.

1.1 In this Agreement, unless the context otherwise requires

  1. Reference to the parties include their respective successors and permitted assigns.
  2. Words in the singular include the plural and, in the plural, include the singular.
  3. Headings are for ease of reference only.
  4. Any reference to “Agreement” also refer to any changes or supplement to it.
  5. The term “including” means including without limitation.
  6. Capitalized words, phrases and acronyms shall have the meanings given to them in the Agreement or shall have their ordinary (technical or other) meaning; and
  7. Parties have expressly required the Agreement to be drawn up in English.

1.2 In the case of a conflict between any provision of this Agreement and any other contract documents, the following descending order of precedence shall apply: (1) the provisions of the body of this Agreement, (2) the provisions of the exhibits, annexes or schedules and (3) the provisions of the Order. In case of a conflict between the provisions of the Service Level Agreement and the provisions of this Agreement, the latter shall prevail.     

1.3 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with, as appropriate, ATS Global B.V.or CUSTOMER. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.4 “Agreement” or “SaaS Terms of Use” means (as the context requires): (i) the body of these SaaS Terms of Use, which constitute a legal agreement between CUSTOMER and ATS(either directly with ATS or indirectly through a Partner)  and including any exhibits, annexes or schedules attached hereto, or (ii) the agreement described under (i) and all Orders, further agreements by or between the parties and other contract documents (taken together).

1.5 “ATS” means, as appropriate, ATS Global B.V. a Dutch limited liability company registered at the chamber of commerce in Amsterdam under number 34101316 or the ATS Affiliate having executed the Order with CUSTOMER.

1.6 “ATS Copyright Agent” means ATS Copyright Enforcement where CUSTOMER can send the DMCA Notice to, either: (i) in writing to A. Hofmanweg 5A, 2031 BH Haarlem, The Netherlands or (ii) via e-mail to [email protected].

1.7 “(ATS) Software” means licensed copies of the object code version of the ATS software applications including any updates, modifications or new versions as well as the Documentation. The Software all as identified in the Order, thatis licensed to CUSTOMER. Software does not include the SaaS services, but Software may be part of a SaaS Service.

1.8 “Confidential Information”: means all information in any medium or format (including written, oral, visual or electronic, and whether or not marked or described as “confidential”), together with all copies, which relates to a party (the “Disclosing Party”) or to its employees, officers, customers or suppliers, and which is directly or indirectly disclosed by the Disclosing Party to the other party (the “Receiving Party”) in the course of their dealings relating to this Agreement, whether before or after the date of this Agreement including Customer Data, Professional Services Data, the terms of this Agreement, and CUSTOMER’s account authentication credentials. Confidential Information does not include the following information: (i) information which is in the public domain other than as a result of breach of this Agreement or any separate confidentiality undertaking between the parties; (ii) information which the Receiving Party received, free of any obligation of confidence, from a third party which itself was not under any obligation of confidence in relation to that information; and (iii) information which was developed or created independently by or on behalf of the Receiving Party.

1.9 “CUSTOMER” means the (potential) counter party of ATS that entered into an Agreement or (directly or indirectly through a Partner) entered into any negotiations regarding such Agreement.

1.10 “Content” means information rightfully obtained by ATS from publicly available sources or its third-party content providers and made available to CUSTOMER through the Services, beta Services or pursuant to an Order, as more fully described in the Documentation.

1.11 “Customer Data” means all data, including all text, sound, video or image files, and(software) programs, that are provided to ATS or its Affiliates by, or on behalf of, CUSTOMER and its Affiliates through use of the SaaS Services, excluding Usage Data (as defined under Section 4.4 below). Customer Data does not include Professional Services Data.

1.12 “Data Protection Agreement” or “DPA” means the ATS data processing agreement for processing of personal data by ATS on behalf of CUSTOMER, as updated from time to time, published on the Website and any additional data protection terms including the privacy Policy ATS Privacy Policy | ATS Global (ats-global.com) that ATS presents with this Agreement.

1.13 “Data Protection Laws” means in relation to any personal data (if any) which is processed in the performance of this Agreement, the applicable (local) law(s) or any other (local) regulations, guidelines or policies, instructions or recommendations of any competent governmental authority, including any amendments, replacements, updates or other later versions thereof.

1.14 “Deliverables” data, report, drawing, specification, design, invention, plan, (software) program (other than Products or Fixes), document, display, presentation, publication, performance, contract, and/or other material, or outcome produced by or to be produced by ATS in the performance of the Professional Services as identified in a Statement of Work.

1.15 “DMCA Notice” means Digital Millennium Copyright Act which covers any copyrighted material that could be infringed on the internet. DMCA notice may also be referred to as DMCA takedown notice or a DMCA request.

1.16 “Documentation” means the user guides, tutorials, online help, release notes, printed instructions, reference manuals, Policies, requirements and other explanatory materials developed by ATS regarding the access, use or operation of the Products, as may be updated by ATS from time to time.

1.17 “Effective Date” means the date which is the earlier of: (i) customer’s initial access to any Products through any online provisioning, registration or order process, or (ii) the effective date of the first Order referencing this Agreement. This Agreement will govern CUSTOMER’s initial purchase on the effective date as well as any future purchases made by customer through an Order that references this Agreement.

1.18 “End User” means, as applicable and unless stated otherwise herein, any person or entity (including, for the avoidance of doubt, any employee or independent contractor (with a need to use the Products to perform their work for which they have been) engaged by CUSTOMER or its Affiliate) authorized by CUSTOMER to access or use the Products.

1.19 “Fair Use Policy” means the fair use policy governing the Support Services attached in Exhibit 1, as may be amended by ATS from time to time.

1.20 “Fix” or “Fixes” means Product fixes, modifications or enhancements, or their derivatives, that ATS either releases generally (as part of a Product Update) or provides to CUSTOMER to address a specific issue.

1.21 “Fees” means in respect of each Agreement, the total sum of fees and charges (recurring and/or one off) payable by the CUSTOMER for Products and Services as specified in the relevant Order(s) or (if appropriate) to be calculated by ATS based on the most current version of the Pricelist.

1.22 “Host” means the computer equipment, network, infrastructure or systems on which the ATS Software is installed, which is owned, managed or operated by ATS, its Affiliates or ATS’s or its Affiliates’ service providers, to provide the SaaS Services.

1.23 “Integrations” means certain end-to-end integrations purchased by CUSTOMER against an additional Fee that enable the Product to function with Outside Technologies.

1.24 “Order” means an order referencing this Agreement as may be agreed from time to time with ATS (or a Partner) identifying the Products and Services, Fees and other details of each transaction that is subject to and governed by this Agreement. An order may consist of either (a) a schedule, quotation, or Statement of Work (as defined in Section 3.2 (Professional Services) below) that has been signed by CUSTOMER and, as applicable, ATS or a Partner, and/or (b) if applicable, a purchase order issued by CUSTOMER pursuant to this Agreement (directly or indirectly through a Partner) to order the Products and Services on CUSTOMER’s behalf, provided that any preprinted terms on a CUSTOMER purchase order or other terms on a purchase order that are inconsistent with or additional to the terms of this Agreement shall be deemed invalid.

1.25 “Other Services” means, collectively or individually, all technical and non-technical consulting and advisory services identified in an Order as Professional Services. As used in this Agreement, the term “Other Services” does not include Support Services.

1.26 “Outside Technologies” means those products, (software) programs, applications and/or services provided by CUSTOMER, its Affiliates or a third-party that are designed to enable them to function with the Product including through the use of application programming interfaces (APIs).

1.27 “Partner” means a third party that is authorized by ATS on the basis of a separate and valid agreement, to distribute Products and Services.

1.28 “Pricelist” means the pricelist issued by ATS to the general business community and/or public as the centralized source of pricing information and license metric (such as, without limitation, the license type) for all Products and Services and other items, all as may be amended from time to time by ATS.

1.29 “Premium Support” means Standard Support that is optionally upgraded by CUSTOMER, against the execution of an Order, to 24/7 accessibility only for incidents with the highest priority.

1.30 “Policies” means the (part of the) internal policies and procedures including standards, manuals or guidelines of ATS or its Affiliate which are relevant to the SaaS Services (some of which may be specific to certain ATS Affiliates), and which will be advised by ATS or its Affiliate, as may be updated by ATS from time to time.

1.31 “Products” means, collectively, the ATS Software, SaaS Services (including any Required Software), Documentation that ATS offers including prerelease versions, updates, patches and Fixes, all as may be updated by ATS from time to time. Product availability may vary per region. The Product may furthermore include certain end-to-end connectors that enable the Product to function with Outside Technologies (the “Connectors”) but specifically excludes any Trial Licenses, Integrations and Outside Technologies (as defined Section 2.6 . The SaaS Services are a product (not Services) which are licensed (not sold) against the execution of an Order.

1.32 “Professional Services” means consulting services provided by ATS to CUSTOMER that support CUSTOMER’s deployment, extension and use of the Products and include, but are not limited to, implementation services, quality assurance or training services, best practices consultations, and integration efforts as further described in, and subject to, Section 3.2 (Professional Services) below. ATS offers different Professional Services packages, including Starter, Basic, Pro and Enterprise. Professional Services do not include SaaS Services.

1.33 “Professional Services Data” means all data, including all text, sound, video, image files, or software, that are provided to ATS or its Affiliates by, or on behalf of, CUSTOMER and its Affiliates (or that CUSTOMER or its Affiliate authorizes ATS to obtain from the SaaS Services) or otherwise obtained or processed by or on behalf of ATS or its Affiliates through a valid SOW to obtain Professional Services (as defined in Section 3.2).

1.34 “Required Software” means, if provided by ATS as identified in an Order, certain ATS Software for installation and use with the SaaS Services to which CUSTOMER has subscribed, a virtual machine that connects CUSTOMER’s Sources using public APIs, connectors, and integrations to the SaaS Services. If applicable, Required Software will be identified in the Documentation.

1.35 “SaaS Services” means any internet-accessible software-as-a-service offering hosted by ATS, its Affiliates or ATS’s or its Affiliates’ service providers, that has been purchased for CUSTOMER’s use under an Order and made available to CUSTOMER over a network on a subscription-basis, all as may be updated by ATS from time to time. It does not include any ATS Software and associated services provided to CUSTOMER under separate license terms.

1.36 “Services” means any services provided or to be provided by or on behalf of ATS pursuant to this Agreement, as identified in an Order.

1.37 “Service Levels” means the service levels as included the Agreement.

1.38 “Standard Support” means the provision of technical support for issues related to the performance of the SaaS Services and reported by CUSTOMER or its End Users through a web-based ticket system with a response provided on weekdays between 09:00h and 18:00h CET. Standard Support may require the execution by CUSTOMER of an Order. If ATS, at its sole discretion, determines that an issue is solely caused by a malfunction of the ATS Software, ATS will resolve the issue free of charge. In all other situations, assistance by ATS or (if appropriate) Partner in remediating the issue identified will be charged to CUSTOMER subject to CUSTOMER’s execution of a separate Order.

1.39 “Start Date” means the start date of the Subscription Period as specified in the Order. If no start date has been agreed, the effective date of the Order shall be deemed the start date.

1.40 “Subscription (Period)” means the limited period identified in an Order during which CUSTOMER has purchased a license or right to access/ use a Product in accordance with the requirements of the Agreement, as the same may be renewed in accordance with Section 2.3.

1.41 “Source(s)” means a CUSTOMER-managed or subscribed to target system for reading data from, and if supported by the specific system, writing changes to the SaaS Services.

1.42 “Support Services” means any support or other technical services in support of the SaaS services provided or to be provided by or on behalf of ATS pursuant to this Agreement, as identified in an Order.

1.43 “Support (Services)” means the Standard Support and Premium Support offered by ATS for Products as described in and provided in accordance with the ATS Support Policy as may be advised by ATS.

1.44 “Term” means the time period from the Effective Date of this Agreement as set forth above until the date this Agreement terminates in accordance with Section 8.1 below.

1.45 “Training Services” means courses and other Product-related training as identified in an Order or otherwise agreed in writing between the parties.

1.46 “Website” or “Site”: means Industrial Automation | Smart Digital Transformation | ATS Global (ats-global.com) or a successor site. “And Products as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto.

2. PRODUCTS, LICENSE AND USE RIGHTS

2.1 Licenses for Products. Products are licensed and not sold. Upon ATS’s acceptance of each Order, ATS grants CUSTOMER during the Subscription Period, a limited, non-exclusive, non-transferrable (except in accordance with Section 15.5 (Assignment)), non-sublicensable right to access, install, execute, and/or use, if applicable, the Products solely for CUSTOMER’s internal business operations, in accordance with the Documentation and subject to the terms of this Agreement, including, if applicable, the number of End Users, Sources, or other quantity measurement/ metric identified in the Order. CUSTOMER agrees that any future Order for Products is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by ATS with respect to future functionality or features.

2.2 Required Software for the SaaS Services. CUSTOMER acknowledges that use of certain SaaS Services requires the installation of Required Software as a pre-requisite for using the SaaS Services. CUSTOMER agrees to install any Required Software, including any required updates when available. To the extent applicable to the SaaS Services to which CUSTOMER has subscribed, ATS hereby grants to CUSTOMER a limited, non-exclusive, non-transferable (except in accordance with Section 15.5 (Assignment)), non-sublicensable, license to install, execute, display, and use the Required Software in accordance with the Documentation, solely in connection with the SaaS Services, during the Subscription Period, in each case subject to the terms of this Agreement.

2.3 Subscription Period and Renewals. SaaS Services and some Software are licensed on a Subscription basis for a specified period of time. The Subscription Period shall commence on the Start Date and run for an initial term of twelve (12) months unless Parties agree to a period of thirty-six (36) month in the Order. If an Order is not terminated sooner for cause pursuant to Section 8.2, the Subscription Period shall automatically renew at the end of the initial term and shall thereafter continue for successive annual periods until terminated by either party upon not less than sixty (60) days’ written notice prior to the expiration of the then current annual renewal term. Subscriptions renew automatically until cancelled in accordance with this Section.

2.4 Support Services. Subject to CUSTOMER’s payment of all Fees, ATS shall provide Support to CUSTOMER during the Subscription Period. Standard Support is included with CUSTOMER’s purchase of the SaaS Services or Software license at no additional charge. An upgrade to higher level support services (Premium Support) may be available for an additional charge. ATS provides Support and associated Documentation in the English language. The purpose of Support is to resolve defects that cause a nonconformity in the SaaS Service as compared to the Documentation. All Product updates, upgrades, patches and Fixes that ATS leaves with CUSTOMER are licensed under the same terms as the Product to which it applies (“Product Updates”). If a Product Update is not provided for a specific Product, any use rights ATS provides to CUSTOMER with the Product Update will apply. ATS will provide a Product Update as it deems fit. In general, ATS shall support the latest version of the SaaS Services and Software to the best of its ability and do its utmost to correct possible errors by providing and installing Product Updates from time to time and at its sole discretion. ATS is entitled but not obligated to develop Product Updates. The Support Services provided by ATS will be provided during normal office hours of ATS by telephone or as web-based support.

2.5 Service Level Agreement. Parties may agree to a Service Level Agreement (“SLA”) applicable to the production instance of the SaaS Services in a format advised by ATS. ATS has implemented a Fair Usage Policy as part of its Support Services to help ensure that all customers enjoy high levels of service and in order to protect ATS’s network and Support Services against misuse and/or abuse.

2.6 Trial Licenses; Outside Technologies; Embedded OSS; and Connectors & Integrations.

  1. Trial Licenses. If CUSTOMER registers on the Website for a free trial or ATS provides CUSTOMER with a pre-production or sandbox instance of a Product (which may be provided alone or for use contemporaneously with a purchased Product), ATS will make the applicable Product available to CUSTOMER on a trial basis free of charge. Notwithstanding anything to the contrary in this Agreement, ATS does not provide Support, warranties, service level commitments, or indemnification for trials, pre-production or sandbox instances, evaluations, or free or beta offerings. Unless CUSTOMER and ATS agree otherwise in writing prior to the expiration or termination of the trial period, CUSTOMER agrees to cease all use of the pre-production or sandbox instance of the Product.
  2. Outside Technologies. As between the parties, CUSTOMER is solely responsible for its use of Outside Technologies, and ATS is not responsible or liable for CUSTOMER’s acquisition and/or use of such Outside Technologies, including, if applicable, all transmission of data through such Outside Technologies. In addition, CUSTOMER acknowledges and agrees that CUSTOMER’s use of Outside Technologies may impact the performance or availability of Products, and ATS has no obligation to remediate or compensate any such performance or availability issues caused, in whole or in part, by the use of Outside Technologies with the Products. To the extent the use of any Outside Technology requires CUSTOMER to possess API keys or other access credentials, CUSTOMER is fully responsible for obtaining all such keys, credentials, or rights, including the right to use such Outside Technology.
  3. Embedded open-source software code (OSS). From time to time, ATS may make available to CUSTOMER under this Agreement certain Software that contains or is distributed with open-source software code, components, or libraries (“Open-Source Software”). Generally, the Documentation for the applicable Software will contain a list of Open-Source Software contained in or distributed with the applicable Software as required by the licenses applicable to the Open-Source Software (“Open-Source Licenses”). To the extent the Documentation does not contain such a list for any reason, ATS will provide such a list in response to CUSTOMER’s written request. To the extent required under the Open-Source Licenses applicable to the Open-Source Software contained in, or distributed with, Software: (i) ATS will use commercially reasonable efforts to deliver to CUSTOMER any notices or other materials (such as source code that is required to be delivered) and (ii) the terms of such licenses will apply to such Open-Source Software and supersede any conflicting term of this Agreement.
  4. Connectors and Integrations. The Connectors and the Integrations, if appropriate against the execution of a separate Order, are provided to CUSTOMER for use in accordance with this Agreement and the Documentation. Notwithstanding anything to the contrary in this Agreement, CUSTOMER acknowledges and agrees that ATS shall provide Support for the Connectors and the Integrations, solely with respect to the functionality of the Connectors and the Integrations that is within ATS’s control. For clarity, ATS is not responsible for any Outside Technologies, including any API keys, tokens, or similar credentials used to access the Outside Technologies.

3. OTHER SERVICES AND LICENSE TO USE DELIVERABLES

3.1 Training Services. ATS will provide Training Services on a per-quote basis as purchased or otherwise requested by CUSTOMER. CUSTOMER will execute an Order for any agreed Training Services subscription (“Training Subscription”). For Training Services acquired outside a Training Subscription, (i) CUSTOMER will approve ATS’s quote prior to ATS’s commencement of the Training Services and (ii) ATS will invoice CUSTOMER monthly in arrears as ATS provides the Training Services. Unless otherwise stated in the Order, Training Services fees shall exclude travel and living expenses.

3.2 Professional Services. CUSTOMER may purchase Professional Services from ATS on a time-and-materials basis. The following terms and conditions shall apply to Professional Services performed for CUSTOMER by or on behalf of ATS:

  1. Performance of Professional Services. ATS Professional Services will be documented in a mutually executed statement of work (“SOW”) that is conditioned on CUSTOMER’s compliance with the requirements of this Agreement. CUSTOMER acknowledges that ATS offers SaaS Services under this SaaS Agreement as a service of general utility that is provided by ATS to all customers the same way at the same time, leveraging the same code base. As provided by ATS over the internet, the SaaS Services are not themselves customizable by one customer to differentiate how it is provided to any other customer. Therefore, the scope of any Professional Services shall be limited to (i) program and deployment planning, (ii) configuration and integration assistance, and/or (iii) interface adapter efforts. Professional Services shall not constitute works-for-hire.
  2. Term of Professional Services. Professional Services will begin and terminate on the dates or times specified in the SOW, unless earlier terminated in accordance with this Agreement.
  3. Fees and Expenses. Fees for Professional Services are described in a SOW or an Order. ATS may issue invoices on a monthly basis for Professional Services actually performed or in accordance with a payment schedule documented in a SOW or Order. ATS shall invoice CUSTOMER, and CUSTOMER shall pay, all actual and reasonable expenses for travel, food and lodging which are directly related to the performance of Professional Services.
  4. Termination or delay of Professional Services. CUSTOMER may terminate Professional Services by giving ten (10) days prior written notice to ATS; termination shall be effective ten (10) days after ATS’s receipt of the notice. If CUSTOMER delays the scheduled start of contracted Professional Services, CUSTOMER shall reimburse ATS for any actual non-refundable costs incurred (including for expenses and contractors) due to the delay. If CUSTOMER terminates Professional Services before the agreed end of a Professional Services engagement as set forth in a SOW, CUSTOMER shall pay ATS for any Professional Services completed but not yet paid for prior to the termination date, as well as reasonable and actual costs (including for expenses and contractors) incurred by ATS through the effective date of the termination.
  5. Pre-existing Work. All rights in any computer code or other written materials a party develops or obtains independent of this Agreement (“Pre-existing Work”) will remain the sole property of the party providing it. Each party may use, reproduce, and modify the other party’s Pre-existing Work only as needed to perform obligations related to Professional Services. ATS Pre-existing Work includes all ATS proprietary information and all right, title and interest, including, without limitation, all patents, copyrights, and trade secret rights anywhere in the world related to the Products, Documentation, and all other intellectual property and rights in connection therewith shall be the sole property of and remain with ATS or its licensors, as applicable. It extends to any modifications thereto developed in whole or in part by Professional Services.
  6. Deliverables. Subject to CUSTOMER’s compliance with this Agreement, ATS grants CUSTOMER a non-exclusive, limited license to use and modify the Deliverables as provided in this Agreement but solely for CUSTOMER’s own use and business purposes in accordance with the license and use rights for the Products and are nontransferable except as expressly permitted under this Agreement or applicable law. Except for the license use rights otherwise expressly provided in this Agreement, no right, title or interest in the Products or Deliverables is granted to CUSTOMER.
  7. Affiliates’ rights to Deliverables. CUSTOMER may sublicense its rights in Deliverables to its Affiliates, but such Affiliates may not sublicense these rights. CUSTOMER is and remains liable for ensuring its Affiliates’ compliance with this Agreement.
  8. Performance Standards. The Professional Services provided under this Agreement will be conducted with standards of practice common in the industry for similar services. While performing Professional Services at CUSTOMER’s site, ATS will comply with all applicable CUSTOMER network and safety rules, guidelines and policies identified in the SOW.
  9. Consent to Subcontract. CUSTOMER hereby consents for ATS to subcontract Professional Services in accordance with Section 15.13 (Subcontractors).

4. INTELLECTUAL PROPERTY AND RIGHTS TO USE DATA

4.1 Reservation of Rights. Without prejudice to the provisions in Section 3 (Other Services and license to use Deliverables) covering Pre-Existing Work and Deliverables, ATS reserves all rights not expressly granted in this Agreement. Products and Deliverables are protected by copyright and other intellectual property laws and international treaties. CUSTOMER acknowledges that ATS and its licensors solely grant rights to access or use the Products and/or Deliverables as expressly granted under this Agreement. No rights will otherwise be granted or implied.

4.2 Rights in and License to use Customer Data. As between the parties, CUSTOMER and its licensors own the Customer Data. CUSTOMER hereby grants and agrees to grant to ATS, its Affiliates and contractors, a limited-term, worldwide, non-exclusive, transferable, sublicensable, royalty-free license to host, copy, reproduce, transmit, display, and process the Customer Data during the Subscription Period as reasonably necessary to: (a) provide the SaaS Services, Support and Other Services to CUSTOMER; and (b) to monitor, modify, adapt, and improve (including develop) the SaaS services.

4.3 Feedback. To the extent CUSTOMER or any of its End Users provides any suggestions for modification or improvement or other comments, code, information, know-how, or other feedback (whether in oral or written form) relating to the Products (“Feedback”), CUSTOMER hereby grants to ATS a perpetual, irrevocable, worldwide, non-exclusive, transferable, sublicensable, royalty-free license to use and commercially exploit the Feedback in any manner ATS sees fit without restriction.

4.4 SaaS Services Statistical Usage Data. ATS may collect, retain, disclose, and use, during and after the Subscription Term for purposes of ATS’s business, usage data that is derived from the operation of the SaaS Services, including patterns identified using the SaaS Services and algorithms, log data, and data regarding the performance and availability of the SaaS Services (“Usage Data”) in accordance with Data Protection Laws.

4.5 DMCA Notices. If CUSTOMER believes that any Content or Site violates its copyright, it should issue a DMCA Notice to the ATS Copyright Agent. ATS cannot take any action until CUSTOMER provides ATS all the required information. For ATS to act, CUSTOMER must at least provide the following in the DMCA Notice:

  1. CUSTOMER’s physical or electronic signature.
  2. identify the copyrighted work that CUSTOMER believes is being infringed.
  3. identify the item that CUSTOMER thinks is being infringed and include sufficient information about where the material is located (including which website);
  4. preferred way to contact CUSTOMER (such as address, telephone number, or email);
  5. a statement that CUSTOMER believes in good faith that the item identified as infringing is not authorized by the copyright owner, its agent, or the law to be used by ATS; and
  6. a statement that the information CUSTOMER provides in its notice/ email is complete and accurate, and that (under penalty of perjury), CUSTOMER is authorized to act on behalf of the copyright owner whose work is being infringed.

5. CUSTOMER OBLIGATIONS AND RESTRICTIONS

5.1 Customer Data. Except for ATS’s obligations described in Section 10 (Confidentiality) and Section 11 (Data Protection and Processing), CUSTOMER shall have sole responsibility for: (i) the accuracy, quality, and legality of the Customer Data and the means by which CUSTOMER acquired the Customer Data and the right to provide the Customer Data for the purposes of this Agreement (including ensuring the receipt of all permissions from individuals and other third parties as may be necessary in order to provide the Customer Data for the purposes contemplated in this Agreement); (ii) the security and confidentiality of CUSTOMER’s and its End Users’ account information; (iii) maintaining a back-up of all Customer Data; (iv) preventing unauthorized access to, or use of, the SaaS Services, and notify ATS promptly of any such unauthorized access or use; (v) collecting, inputting and updating all Customer Data stored on the hosted environment, (vi) ensuring that the Customer Data does not include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party or contain anything that is obscene, defamatory, harassing, offensive or malicious, and (vii) collecting and handling all Customer Data in compliance with all Data Protection Laws, rules, and regulations.

5.2 Compliance. CUSTOMER shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including all Data Protection Laws, international communications, and the transmission of technical or personal data. CUSTOMER acknowledges that ATS exercises no control over the content of the information transmitted by CUSTOMER through the SaaS Services including the Customer Data. CUSTOMER shall and ensure the End Users shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, trade secret, trademark, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.

5.3 Required software. CUSTOMER acknowledges that use of the SaaS Services may require the installation of generally available software as a pre-requisite for using the SaaS Services, as specified in the Documentation and/or as advised by ATS or Partner from time to time (“Required Software”). CUSTOMER shall be responsible for installation of any Required Software, including any required updates when available at its own cost.

5.4 End Users. CUSTOMER is responsible for all activities conducted by it or through the accounts of its End Users as it relates to access and use of the Products. CUSTOMER shall ensure that the End Users shall abide by the terms of this Agreement. Any breach by an End User will be deemed to be a breach by CUSTOMER. ATS may terminate or suspend any End User’s access to the SaaS Services for any breach without notice. CUSTOMER will control access to, and use of, the Products by End Users and is responsible for any use of the Products that does not comply with this Agreement. CUSTOMER shall keep complete and accurate books and records of the End Users’ access and use of the Products to demonstrate its compliance with this Agreement.

5.5 Affiliates. CUSTOMER may order Products for use by its Affiliates. If CUSTOMER executes an Order to do so, the licenses granted to CUSTOMER under this Agreement will apply to such Affiliates, but CUSTOMER will have the sole right to enforce this Agreement against ATS. CUSTOMER is and remains liable for ensuring its Affiliates’ (and the Affiliates’ End Users) compliance with this Agreement.

5.6 Assistance. CUSTOMER shall provide commercially reasonable information and assistance to ATS to enable ATS to deliver the SaaS Services. CUSTOMER acknowledges that ATS’s ability to deliver the Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.

5.7 Security measures. CUSTOMER is solely responsible for: (i) its use of the SaaS Services, including ensuring a level of security appropriate to the risk in respect of the Customer Data, securing its account authentication credentials, protecting the security of CUSTOMER personal data when in transit to and from the SaaS Services, taking appropriate steps to securely encrypt and/or backup any CUSTOMER personal data uploaded to the SaaS Services, and properly configuring the SaaS Services and using available features and functionalities to maintain appropriate security in light of the nature of the CUSTOMER personal data processed by CUSTOMER’s use of the SaaS Services; and (ii) the Customer Data that CUSTOMER elects to store or transfer outside of ATS and (if appropriate) its sub-processors’ systems (for example, offline or on-premise storage). ATS has no obligation to protect such data; and (iii) reviewing the security measures and evaluating for itself whether the SaaS Services and the security measures and ATS’s commitments in respect of data processing will meet CUSTOMER’s needs, and (iv) not allowed to give any third parties/agents, other than End Users, access to the SaaS Services. CUSTOMER shall, during the Term, if appropriate, allocate sufficient third-party software licenses as required in accordance with the Documentation to maintain an appropriate level of security for the SaaS Services.

5.8 Acceptable Use and ID Information. CUSTOMER shall: (i) notify ATS immediately of any unauthorised use of any password or user id or any other known or suspected breach of security, (ii) report to ATS immediately and use reasonable efforts to stop any unauthorised use of the SaaS Services that is known or suspected by CUSTOMER or any End User, and (ii) not provide false identity information to gain access to or use the SaaS Services.

5.9 Administrator Access.CUSTOMER shall be solely responsible for the acts and omissions of its End Users with an administrator role. ATS shall not be liable for any loss of data or functionality caused directly or indirectly by the administrator End Users.

5.10 Restrictions. CUSTOMER and its End Users shall not, and CUSTOMER shall ensure its Affiliates, and their End Users shall not, permit any third party to:

  1. copy or republish the SaaS Services or Software.
  2. make the SaaS Services available to any person other than End Users.
  3. use or access the SaaS Services to provide service bureau, timesharing or other computer hosting services to third parties,
  4. send to ATS, or store in the SaaS Services, any Sensitive Data.
  5. install the Required Software in any country that has data residency or data transmission restrictions, including, but not limited to, Russia and the People’s Republic of China.
  6. send or store viruses, spyware, ransomware, timebombs, Trojan horses, or other harmful or malicious code, or files to, or in connection with, the SaaS Services.
  7. send or store infringing or otherwise unlawful material in connection with the SaaS Services or Software.
  8. modify or create derivative works based upon the Products or Documentation,
  9. remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Software used to provide the SaaS Services or in the Documentation,
  10. reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law, or
  11. access the SaaS Services or use the Documentation to build a similar or competitive product.
  12. attempt to gain unauthorized access to or interfere with or disrupt the integrity or performance of, the SaaS Services or its related systems or networks or the data contained therein.

6. ORDERS, PARTNERS, VERIFICATION

6.1 Orders. CUSTOMER may purchase Products and/or Other Services by either: (a) executing an Order; or (b) executing an Order with a Partner. Orders may be placed through a Partner. All Products and/or Other Services purchased by CUSTOMER from ATS directly, or through a Partner shall be governed exclusively by this Agreement and, subject to Section 15.8 (Entire Agreement), the applicable Order.

6.2 Delivery. ATS shall fulfill Orders for SaaS Services by providing access to the Software and Documentation on the Start Date, subject to the receipt by ATS of all Fees due at that time. CUSTOMER’s Order shall not be subject to acceptance and be considered delivered on the Start Date. Thereafter, CUSTOMER shall be responsible for and bear all expenses (including without limitation, taxes) related to making the permitted number of copies of the Software and distributing the copies as permitted under this Agreement.

6.3 Selecting a Partner. CUSTOMER may authorize a Partner to place Orders on CUSTOMER’s behalf and manage CUSTOMER’s purchases by associating the Partner with its account. If the Partner’s distribution right is terminated, CUSTOMER must select an authorized replacement Partner or purchase directly from ATS. CUSTOMER acknowledges that Partners and other third parties are not agents of ATS and are not authorized to enter into any agreement with CUSTOMER on behalf of ATS.

6.4 Partner Administrator privileges and access to Customer Data. If CUSTOMER purchases SaaS Services from a Partner, CUSTOMER may choose to provide that Partner with administrator privileges. CUSTOMER consents to ATS and its Affiliates providing that Partner with Customer Data and Administrator Data for purposes of provisioning, administering, and supporting (as applicable) the SaaS Services. Partner may process such data according to the terms of Partner’s agreement with CUSTOMER, and its privacy commitments may differ from what has been agreed with ATS. CUSTOMER appoints Partner as its agent for purposes of providing and receiving notices and other communications to and from ATS. CUSTOMER may terminate the Partner’s administrative privileges at any time.

6.5 Product Support. Partners may provide certain Support for Products and other value-added services, and Partner is responsible for the performance of any services it provides. If CUSTOMER purchases Support Services through a Partner, ATS will be responsible for the performance of those services subject to the terms of this Agreement.

6.6 Use Verification. ATS or Partner may remotely review CUSTOMER’s use of the SaaS Services, and on ATS or Partner’s written request, CUSTOMER will provide reasonable assistance to verify CUSTOMER’s compliance with the Agreement, and access to and use of the SaaS Services. ATS may request CUSTOMER to provide all relevant documentation and/or information. If ATS or Partner determines that CUSTOMER has exceeded its permitted access and use rights to the SaaS Services, ATS will notify CUSTOMER and within 30 days thereafter CUSTOMER shall either: (a) disable any unpermitted use by End Users, or (b) execute an Order to purchase additional Subscriptions commensurate with CUSTOMER’s actual use at that time.

7. FEES, INVOICES AND PAYMENT

7.1 Fees and Adjustments. Unless otherwise provided in an Order, ATS shall invoice CUSTOMER for all Fees due on or promptly following the Effective Date. During the Subscription Period, CUSTOMER agrees to pay the annual Fee for the SaaS Services and the Support Service as well as the Fee for any other Products or Services, all as specified in the Order (or if no order was agreed, the then current Pricelist will apply). Except as expressly provided otherwise herein, fees are non-refundable, non-cancellable and not subject to set-off. All Fees shall be paid by CUSTOMER in the currency stated in each Order. During the Term, ATS may from time to time adjust the Fees including recurring (SaaS) Fees annually for inflation.

7.2 Purchases Through a Partner. For any Products or Services purchased by CUSTOMER through a Partner, the pricing and payment terms are established through the order or agreement entered into by and between CUSTOMER and the Partner and all payments will be made directly to Partner.

7.3 Payment and Payment term. CUSTOMER shall pay an invoice from ATS within 30 days from the date of issuance. ATS shall issue its invoice when: (a) it receives the Order from CUSTOMER, (b) the agreed (periodic) invoice date(s) has (have) elapsed. A late payment charge of the lesser of 1.5% per month or the highest interest rate allowed by applicable law will be charged upon all past due amounts hereunder.

7.4 Taxes and Duties. Prices to CUSTOMER do not include taxes, duties, tariffs, handling fees, or other such assessments of any nature. Whenever imposed, such assessments are payable by CUSTOMER. Income or other taxes that are required to be paid or withheld by CUSTOMER or ATS under the laws of jurisdictions other than The Netherlands, in connection with the Fees paid by CUSTOMER hereunder, are the sole obligation of CUSTOMER and shall be exclusive of the Fees paid by CUSTOMER.

8. TERM, SUSPENSION AND TERMINATION

8.1 Term. The term of this Agreement shall begin on the Effective Date and continues until the stated Subscription Period in all Orders has expired or has otherwise been terminated. This Agreement may be terminated in accordance with this Section 8 (Term, Suspension and Termination) and furthermore at any time by the mutual written agreement of the parties.

8.2 Termination for Cause. Each party will have the right to terminate this Agreement (in whole or in part) at any time by giving written notice to the other party if (i) the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof; (ii) the other party repeatedly breaches any terms of this Agreement in such manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement, (iii) if any of the following events occur: (a) the presentation of a petition for winding up (b) is the subject of an order or an effective resolution is passed for winding up; (c) the application for an order or application for the appointment of a receiver (including an administrative receiver), administrator, trustee or similar officer in respect thereof; (d) if a receiver, administrative receiver, administrator or similar office is appointed over all or any part of the assets or undertaking; (e) making a composition with its creditors generally or an assignment for the benefit of its creditors or other similar arrangement; (f) goes into liquidation; or (g) ceasing, or threatening to cease, to carry on business.

8.3 Suspension. ATS reserves the right to suspend delivery of the SaaS Services if:

  1. CUSTOMER fails to timely pay any undisputed amounts due to ATS under the Agreement, but only after ATS notifies CUSTOMER of such failure and such failure continues for thirty (30) days or more after the payment due date. Suspension of the SaaS Services shall not release CUSTOMER of its payment obligations under this Agreement, or
  2. ATS reasonably concludes that this is required to prevent unauthorized access to Customer Data or to ensure the ongoing confidentiality, integrity, availability, or resilience of ATS’s systems and services. ATS shall immediately notify CUSTOMER of the suspension, and the parties shall diligently attempt to resolve the issue.

ATS shall not be liable to CUSTOMER or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Services in accordance with this Section 8.3 Nothing in this Section 8.3 will limit ATS’s rights under this Section or elsewhere in the Agreement.

8.4 Exclusive Reasons for Termination. To the extent permitted by law, the parties waive any right to terminate, rescind, or otherwise end the Agreement, on grounds other than those set out herein.

8.5 Effect of Termination. Upon expiration or termination of this Agreement and without prejudice to Section 15.12 (Survival):

  1. All licenses to the Software, Required Software, access to the SaaS Services, access and use of the Documentation and all other Orders for usage rights granted under this Agreement shall immediately terminate and CUSTOMER shall immediate cease using them and shall remove all Software, Required Software and Documentation from its systems and destroy all copies thereof.
  2. If ATS terminates this Agreement due to an uncured breach by CUSTOMER, then CUSTOMER shall immediately pay to ATS or Partner (if purchased through a Partner), cancellation fees including all future Fees due under all Orders (in effect at that time). If CUSTOMER terminates this Agreement due to an uncured material breach by ATS, then ATS shall immediately refund to CUSTOMER all pre-paid amounts for any unperformed SaaS Services scheduled to be delivered for the remainder of the (Initial) Subscription Period.
  3. Upon termination of this Agreement and upon subsequent written request by the Disclosing Party, the Receiving Party of tangible Confidential Information shall promptly return such information or destroy such information and provide written certification of such destruction, provided that the Receiving Party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.

8.6 Termination of Orders. Unless agreed otherwise, all Orders issued under this Agreement shall terminate immediately on termination of this Agreement in accordance with this Section 8 and without prejudice to Section 8.5.

9. WARRANTIES, REMEDIES AND DISCLAIMER

9.1 General. Each party represents and warrants that it has the legal power and authority to enter into and perform under this Agreement.

9.2 SaaS and Support Services. ATS warrants that during any Subscription Period, the SaaS Services will perform substantially in accordance with the Documentation. Although reasonable efforts are made to resolve an issue reported to ATS or to provide an answer to a question by CUSTOMER, ATS will provide the Support Services “as is” and without any further warranties. CUSTOMER’s remedies for breach of this warranty are described in the SLA.

9.3 Software. ATS warrants that the Software will materially conform to the Documentation for a period of ninety (90) days from the Start Date. If it does not, and CUSTOMER notifies ATS within the warranty term, ATS will, at its option, (i) refund the Fees CUSTOMER paid for the Software license or a prorated portion attributable to the defective Software calculated from the date ATS received written notice of the defect through the end of the paid-up Subscription Period, or (ii) repair or replace the Software. If ATS refunds license Fees to CUSTOMER for defective Software, CUSTOMER’s license to the Software shall terminate in accordance with Section 8.5.

9.4 Other Services. ATS warrants that ATS will perform Other Services in a professional manner consistent with applicable industry standards. As CUSTOMER’s exclusive remedy and ATS’s sole liability for breach of the warranty, ATS will, at its sole option and expense, promptly re-perform any Other Services that fail to meet this limited warranty or refund to CUSTOMER the Fees paid for the non-conforming portion of the Other Services. Professional Services that are provided without charge are provided “as is,” without any warranty or condition.

9.5 Disclaimer. ATS and its licensors make no warranty, representation or promise except as specifically set forth in this agreement. to the maximum extent permitted by applicable law, and except as expressly set forth herein, ATS and its licensors provide the Products (including the SaaS Services, Software and Other Services) as is and with all faults, and hereby disclaim all other representations, warranties and guarantees, whether express, implied or statutory, including implied warranties of merchantability, title, non-infringement and fitness for any purpose. without limiting the foregoing, ATS and its third party licensors make no representation, warranty or guaranty (1) as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of any products or any content therein or generated therewith, (2) that (a) the use of any Products will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the Products will meet CUSTOMER or End User’s requirements or expectations, (c) any stored data will be accurate or reliable or that any stored data will not be lost or corrupted, (d) makes no warranty regarding any non-ATS application with which the Software or SaaS Services may interoperate. (e) errors or defects will be corrected, or (f) the Products (or any server(s)/ host(s) that make a hosted service available) are free of viruses or other harmful components. The limited warranties provided in this Section are the sole and exclusive representations and warranties provided to CUSTOMER in connection with the subject matter of this Agreement.

9.6 Exclusions. The limited warranty is void if non-conformance or problems are caused by:

  1. factors outside of our reasonable control (for example, natural disaster, war, acts of terrorism, riots, government action, or a network or device failure outside our control);
  2. use of hardware, or software not provided or not approved (as recommended in the Documentation) by or on behalf of ATS, including, but not limited to, issues from inadequate bandwidth, high latency or related to third-party software or services resulting
  3. use of ATS Software after advice was given to modify your use of the ATS Software and provided CUSTOMER did not modify its use as advised.
  4. unauthorized action or lack of action when required, or from CUSTOMER’s employees, agents, contractors, or vendors, or anyone gaining access to ATS’s network by means of CUSTOMER’s passwords or equipment, or otherwise resulting from a failure attributable to CUSTOMER to follow appropriate security practices.
  5. CUSTOMER’s failure to adhere to any required configurations, install Required Software, use supported platforms, CUSTOMER’s use of the Saas Services in a manner inconsistent with applicable ATS policies and/or ATS’s published guidance.
  6. CUSTOMER’s faulty input, instructions, or arguments (for example, requests to access files that do not exist);
  7. CUSTOMER’s attempts to perform operations that are not permitted or supported by the Documentation; or
  8. Products or Services for which CUSTOMER at the time of the claim has not or not fully paid the Fees.

10. CONFIDENTIAL INFORMATION

10.1 Confidential Information. Each Disclosing Party shall maintain strict confidentiality with regard to any Confidential Information disclosed to the Receiving Party. It shall deploy such procedures with regard to Confidential Information that shall be no less restrictive than the strictest procedures used by it to protect its own confidential and proprietary information, but not less than reasonable care. Each party acknowledges that a breach of this obligation will constitute a material breach of the Agreement and will lead to liability on its part. Each party shall ensure that its personnel or (the personnel of) any subcontractors are advised of the confidential and proprietary nature of the Confidential Information and are bound in writing to confidentiality obligations no less strict than as set out in this Agreement. During the term of this Agreement, any Confidential Information disclosed will be protected for a period of three (3) years from date of disclosure (perpetually in the case of intellectual property), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information, and which are provided to the party hereunder.

10.2 Notifications. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorised disclosure of the other party’s Confidential Information.

11. DATA PROTECTION AND PROCESSING

11.1 Scope. ATS and its Affiliates, and their respective agents and subcontractors, will process Customer Data, CUSTOMER personal data, and Professional Services Data as provided in this Agreement and, if appropriate, the DPA. Before providing personal data to ATS, CUSTOMER will obtain all required consents from third parties (including CUSTOMER’s contacts, Partners, distributors, administrators, and employees) under applicable Data Protection Laws. Parties will comply with Data Protection Laws and may further detail the aforementioned in a Data Processing Agreement which, if agreed between the parties, will form part of this Agreement. If no separate DPA is executed, this Agreement will be considered a data processing agreement as defined under Data Protection Laws.

12. DEFENSE OF THIRD PARTY CLAIMS

12.1 Infringement Indemnity: Subject to Section 12.3 (Indemnity Process) below and Section 13 (Limitation of Liability), ATS will defend CUSTOMER from any and all claims, demands, suits, or proceedings brought against CUSTOMER by a third party alleging that the SaaS Services or Software, as provided by ATS to CUSTOMER under this Agreement, infringe any patent, copyright, or trademark or misappropriate any trade secret of that third party (each, an “Infringement Claim”). ATS will indemnify CUSTOMER for all damages and costs (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction, authorized arbitral panel, or paid to a third party in accordance with a written settlement agreement signed by ATS, in connection with an Infringement Claim. In the event an Infringement Claim is brought, or in ATS’s reasonable opinion is likely to be brought, ATS may, at its option: (a) procure the right to permit CUSTOMER to continue use of the SaaS Services or Software, (b) replace or modify the SaaS Services or Software with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (c) if the foregoing options are not reasonably practicable, terminate the applicable Order and repay to CUSTOMER any prepaid fees paid by CUSTOMER under the Order to ATS with respect to any period of time following the termination date. Notwithstanding the foregoing, ATS shall have no liability for any Infringement Claim of any kind to the extent that it relates to (i) modification of the SaaS Services or Software by a party other than ATS, (ii) use of the SaaS Services or Software in combination with any other product, service, or device, if the infringement would have been avoided by the use of the SaaS Services or Software without the other product, service, or device, or (iii) use of the SaaS Services or Software other than in accordance with the applicable Documentation and this Agreement. The indemnification obligations set forth in this Section are CUSTOMER’s exclusive remedy and entire liability and obligation of ATS with respect to third party claims against CUSTOMER alleging intellectual property infringement or misappropriation.

12.2 CUSTOMER Indemnity. Subject to Section 12.3 (Indemnity Process), Customer will defend ATS and its Affiliates from all claims, demands, suits, or proceedings brought against ATS or its Affiliates by a third party alleging: (i) any Customer Data or non-ATS Product hosted in the SaaS Services by ATS on CUSTOMER’s behalf misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party; or (ii) CUSTOMER’s use of any Product or Deliverable, alone or in combination with anything else, violates the law or harms a third party. CUSTOMER will indemnify ATS for all damages and costs (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction, authorized arbitral panel, or paid to a third party in accordance with a written settlement agreement signed by CUSTOMER, in connection with any such claims, demands, suits, or proceedings. The indemnification obligations set forth in this Section are ATS’s exclusive remedy and CUSTOMER’s sole liability with respect to CUSTOMER’s infringement, violation or misappropriation of third-party’s rights.

12.3 Indemnity Process. The party seeking indemnification under this Section 12 (“Indemnitee”) must (i) promptly notify the other party (“Indemnitor”) of the claim (provided that any failure to provide prompt written notice will only relieve the Indemnitor of its obligations to the extent its ability to defend a claim is materially prejudiced by the failure), (ii) give the Indemnitor sole control of the defense and settlement of the claim (provided that Indemnitor shall not consent to entry of any judgment or admission of any liability of the Indemnitee without the prior written approval of the Indemnitee), and (iii) provide reasonable assistance, cooperation, and required information with respect to the defense and settlement of the claim, at the Indemnitor’s expense. At its own expense, the Indemnitee may retain separate counsel to advise the Indemnitee regarding the defense or settlement of the claim.

13. LIMITATION OF LIABILITY.

13.1 WITHOUT PREJUDICE TO SECTION 13.2 BELOW, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ATS’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THE LICENSE, PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, IRRESPECTIVE OF THE NATURE OF THE CLAIM, IS LIMITED TO THE FEES ACTUALLY PAID OVER THE CONTRACT YEAR (EXCLUSIVE VAT) IN WHICH THE DAMAGE CAUSING EVENT OR, IN CASE OF A SERIES OF RELATED EVENTS, THE FIRST DAMAGE CAUSING EVENT OCCURRED OR COMMENCED.

13.2 IN NO EVENT SHALL ATS, ITS DIRECTORS, EMPLOYEES OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS). IT IS SPECIALLY UNDERSTOOD AND AGREED THAT ATS EXCLUDES LIABILITY FOR ANY FAILURE BY ATS TO MEET AGREED SERVICE LEVELS FOR THE SAAS SERVICES AS A RESULT OF NETWORK INTRUSIONS AND/OR INCIDENTS ATTRIBUTABLE TO CRITICAL IT SERVICE PROVIDERS. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICBLE LAW, ATS AND ITS LICENSORS ASSUME NO LIABILITY FOR, ANY PRODUCTS PROVIDED ON AN EVALUATION BASIS, FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER NETWORKS OUTSIDE THE REASONABLE CONTROL OF ATS.

13.3 ANY LIMITATION OR EXCLUSION OF LIABILITY AS SET OUT IN THIS SECTION SHALL NOT APPLY IN SO FAR AS THE DAMAGE IS CAUSED BY: (I) CUSTOMER’S OBLIGATION TO PAY THE FEES FOR PRODUCTS, SERVICES OR TAXES, (II) GROSS NEGLIGENCE, FRAUD OR WILFUL MISCONDUCT, OR (III) PERSONAL OR FATAL INJURY, OR (IV) IP INFRINGEMENT CLAIMS AS DECRIBED IN SECTION 12.2, OR (V) INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR (V) ANY LOSS OR DAMAGE THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

14. CHANGES TO THIS AGREEMENT

14.1 Changes. Except as stated otherwise in this Section 14 or elsewhere in the Agreement, the Agreement may be amended only in writing signed by authorized representatives of both parties. No changes will apply to perpetual Software licenses previously acquired. Changes will apply to new Orders and to existing Subscriptions and SOWs as follows:

  1. DPA, SLA and Documentation. Changes to DPA, SLA and Documentation (including any Policies) will apply as provided in those documents as advised by ATS from time to time.
  2. Products. Except as advised otherwise by ATS, all changes will apply when they are published on the Site. In addition, for Subscriptions, if CUSTOMER chooses to update the Software to a new version before the end of the Subscription Period, the terms in effect at the time of the Product Update will apply to the use thereof.
  3. Other terms. CUSTOMER may be required to accept revised or additional terms when placing a new Order. For existing Subscriptions and SOWs, CUSTOMER will be notified at least 60 days before changes take effect to the provisions of the Agreement except the DPA, SLA and Documentation, which have separate terms for updates. Such changes will take effect upon renewal unless CUSTOMER accepts them earlier in the manner specified in the notice and will not supersede or modify any amendments to this Agreement. CUSTOMER agrees that its continued use of the Products or Services after renewal will constitute its acceptance of all changes. If CUSTOMER does not agree to the changes, it must stop using the Products and Services by the end of the Subscription or Support term and (if appropriate) turn off recurring billing for any Subscriptions that are set to renew automatically.

14.2 Changes proposed by CUSTOMER. CUSTOMER may not modify this Agreement. Any additional or conflicting terms contained in a purchase order or otherwise presented by CUSTOMER are expressly rejected and will not apply.

15. MISCELLANEOUS

15.1 Non-Exclusive Service. CUSTOMER acknowledges that the Products and Services are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict ATS’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for CUSTOMER, to other parties.

15.2 Compliance with Law. Both Parties shall comply with all laws applicable to the performance of its obligations under this Agreement.

15.3 Notices. Any notice required or permitted to be given by CUSTOMER hereunder shall be in writing and delivered by courier or overnight delivery services, by email (with a read-receipt) or by certified mail, and in each instance will be deemed given upon receipt. Any such notice shall be delivered or sent to ATS, A. Hofmanweg 5A, 2031 BH Haarlem, The Netherlands or via e-mail to [email protected].

15.4 Governing Law and Disputes. This Agreement is exclusively governed by the laws of the Netherlands. The Vienna Sales Convention of 1980 does not apply. Any dispute between the parties arising from this Agreement or in connection thereto or that might result there from shall irrevocably and unconditionally be submitted to the exclusive jurisdiction of the courts of Haarlem. Except in circumstances where a party seeks urgent injunctive relief, before commencing any court proceedings, if any disputes arise under this Agreement the parties will negotiate in good faith to resolve the dispute and if the dispute has not been resolved within sixty (60) calendar days by the relevant parties using their best efforts to resolve the dispute, the dispute will be referred to arbitration and determined under the Rules of Arbitration of Nederland’s Arbitrage Institute, Secretariaat NAI, Aert van Nesstraat 25 J/K, 3012 CA Rotterdam, Postbus 21075, 3001 AB Rotterdam, as mutually agreed by the parties.

15.5 Assignment. Neither party may assign any rights, duties, obligations or privileges under this Agreement without the prior written consent of the other party. Furthermore, CUSTOMER may not assign (or pledge) a claim against ATS in a way that is valid under applicable property law without the prior written consent of ATS. A change of control or ownership shall not be deemed to be an assignment under this Section so long as the new owner has expressly assumed in writing all the duties and obligations of the assignor and further provided, that CUSTOMER shall remain liable and responsible to ATS (and its licensors) for the performance and observance of all such duties and obligations.

15.6 Severability. Should any part or provision of this Agreement be held unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining parts or provisions shall not be affected by such holding.

15.7 Limitation on Effect of Waiver. Failure on the part of ATS to exercise, or ATS’s delay in exercising, any of ATS’s rights hereunder shall not be construed as a waiver or waiver of other breaches of this Agreement. Any single or partial exercise by a party of any right shall not preclude any other or future exercise thereof or the exercise of any other right in the Agreement.

15.8 Entire Agreement. The Agreement contains the entire understanding of the parties with respect to the transactions contemplated and supersedes any prior agreements or understandings among the parties with respect to the subject matter hereof.

15.9 Trade Law Assurances. Each party will comply with all laws and regulations applicable to the import or export of the Products and Services, including, without limitation, trade laws such as the U.S. Export Administration Regulations and International Traffic in Arms Regulations and sanctions regulations administered by the U.S. Office of Foreign Assets Control (“Trade Laws”). CUSTOMER acknowledges that it is familiar and shall comply with all Trade Laws and which may include restrictions on destinations and use of the Products and Services. CUSTOMER hereby expressly agrees to defend, hold harmless and indemnify ATS, its directors, officers, and employees, from any claim, suit or dispute alleging that CUSTOMER has exported the ATS Software in violation of such laws. ATS may suspend or terminate this Agreement to the extent that ATS reasonably believes that performance would cause it to violate Trade Laws or put it at risk of becoming subject to sanctions and penalties under such laws.

15.10 Construction. The headings in this Agreement are for convenience of the parties only. They do not constitute a portion of this Agreement and shall not be used in interpreting the construction of this Agreement.

15.11 Force Majeure. ATS is not, and may not be construed to be, in breach of this Agreement for any failure or delay in fulfilling or performing the SaaS Service or any Other Services, when and to the extent such failure or delay is caused by or results from acts beyond ATS’s reasonable control, including: strikes, lock-outs, sabotage, theft or other criminal acts export bans, sanctions, war, terrorism, riot, civil unrest, or government action; failure of Internet connectivity or backbone or other telecommunications failures, in each case outside of ATS’s network; breakdown of plant or machinery; nuclear, chemical, or biological contamination; fire, flood, natural disaster, extreme adverse weather, or other acts of God (each a “Force Majeure Event”). ATS will use reasonable efforts to mitigate the effects of such Force Majeure Event. Notwithstanding the foregoing, CUSTOMER shall remain liable for the payment of all Fees due pursuant to an applicable Order.

15.12 Survival. The rights and obligations of the parties which by their nature extend beyond the expiration or termination of the Agreement shall survive termination or expiry of this Agreement for any reason.

15.13 Subcontractors. ATS may perform its obligations under this Agreement through its Affiliates and use subcontractors to provide certain Products or Services. ATS remains responsible for their performance.

15.14 Negation of Agency and Similar Relationships. Nothing contained in this Agreement shall be deemed to create an agency, joint venture or partnership relationship.

Exhibit 1 Fair Use Policy for Support Services

Scope. This document outlines the fair use policy of the support services offered by ATS Global B.V. or any of its affiliates (“ATS”, “we” or “our”) for the production instance of the SaaS services (“Support Services”) and accompanies the (SaaS) Agreement we entered into with you (“Customer”, “you” or “your”). Capitalized terms used in this Fair Use Policy that are not defined herein have the meanings given to them in the Agreement. This Fair Use Policy solely governs the Support Services.

General: This Fair Use Policy seeks to ensure an optimal and fair, user experience for all our customers. ATS is committed to an up-front, published, simple, transparent, and no-nonsense subscription pricing model. Pricing for Products and Services are in our Pricelist. ATS uses all commercially reasonable efforts to ensure its Pricebook is complete and accurate. We use all commercially reasonable methods to prevent any extra fees/hidden costs when the Support Services are used reasonably and normally. However, to maintain that position (the lack of hidden charges) we need to ensure that the provision of the Support Services is transparent and optimal, as well as fair to all our customers.

ATS will monitor this process monthly and will discuss the outcome via a Service Management meeting with the Partner or End Customer. This Fair Use Policy is limited to our Support Services and covers elements including the number of tickets logged or capacity of ATS staff allocated to Incident response for CUSTOMER.

As ATS determines the scope of fair use ATS will consider relevant circumstances including the actual use of the Support Services, your entitlement (Standard or Premium Support), technical advances and the current price rate of all necessary ATS tools/resources.

ATS reserves the right to adjust the Support Fees if the Support Services used by the customer exceed the Fair Use Policy thresholds of 50% or more, for 2+ consecutive months. If ATS detect something out of the ordinary or excessive use in your Support Service usage, ATS will contact you to discuss the situation and potential alternatives. In extreme cases, we may be required to limit the Support Services usage (e.g., limit your access to support). Alternatively, we may discuss with you options to resolve the discrepancy.

Urgent and Extreme Cases.In an urgent or extreme case, for example where Support Services are likely to be significantly impacted, or where we believe your system or ours is under attack (a DDOS – denial of service attack for instance) or where we believe your system or ours has been compromised (for example a hacker or potential a security breach) we may cease the delivery of the Support Services, or temporarily suspend your access to them. Before we do this, we will always contact you to discuss possible solutions. Furthermore we may, irrespective from an attack or breach, if your use of the Support Services continues to adversely affect (in all material respects) other users, or can reasonably be expected to do so, or is generating costs to us that are not normal when compared to other customers on the same support contract and pursuant to this Fair Use Policy, we may require you to execute a follow-up Order to compensate ATS for the increased efforts before continuing the delivery of the Support Services to you. Before we do this, we will always contact you to discuss in good faith possible solutions.