SaaS Customer Terms
These HSO Innovation AG SaaS Customer Terms (“SaaS Terms”) form the basis for the HSO Innovation AG Customer Agreement (“Agreement”) governing a HSO Innovation AG Software Solution as a Service Product (hereafter the “Software Solution”), supplied to Customer or Licensee (“Customer”) by HSO Innovation AG (“HSO”) or a HSO Innovation Partner (“Partner“). The Agreement consists of:
- These SaaS Terms
- The Customer Order Form
By installing, having installed, or using the Software Solution and service, Customer accepts these SaaS Terms. If Customer does not accept them, do not install, have installed or use the Software Solution. If Customer complies with these SaaS Terms, Customer has the rights as described below in Section 3. If an individual uses the Software Solution on behalf of a company or other legal entity, that individual represents that he or she has the authority to bind that entity to the use of the Software Solution.
Scope of these HSO Innovation AG Customer Terms
HSO holds and controls certain software programs entitled the “Software Solution”. The Software Solution includes proprietary rights in certain valuable trade names, trademarks, and computer programs. The provisions of these SaaS Terms apply to the provision of the Software Solution by or via HSO Innovation AG, a limited liability company with statutory seat in Zurich, Switzerland, registered with the chamber of commerce (Handelsregister) Zürich under number CH-020.3.912.757-2, of services under the name or in the field of Software as a Service (hereinafter: the SaaS). In this respect, the SaaS entails a service by which HSO makes the Software Solution available to the Customer remotely through the Internet or another data network, and maintains this availability remotely, without providing a physical carrier with the software concerned to the customer.
Terms defined in this Section 2, and parenthetically elsewhere, shall throughout these SaaS Terms have the meanings here and there provided. Defined terms may be used in the singular or plural. The words below are agreed to mean as follows:
- “Agreement” shall mean these SaaS terms and the Customer Order Form
- “Customer Order Form” shall mean a form provided by Partner and/or HSO on which Customer places and orders the Software Solution to HSO and defines the Term of the Subscription License and Invoice Schedule. Orders are not binding until accepted by HSO.
- “Customer” shall mean the legal entity who has entered into this Agreement to use the Software Solution for its own use.
- “Customer Data” means data, including all text, sound, video, or image files, and software, that are provided to HSO Innovation and/or Microsoft by Customer or on Customer’s our behalf while using the Software Solution.
- “HSO” means HSO Innovation AG., a Switzerland based company, and its affiliates.
- “Partner” means an entity who has executed a Partner Agreement with HSO and is authorized to sell the Software Solution to Customer.
- “Software Solution” and “Software Solution and service” shall mean one or more software products owned by HSO and/or third party software products (of which HSO has obtained the right of making it available to the Customer) provided under this agreement as a service (SaaS). The specific Software Solution may be specified in the Customer Order Form or a separate agreement between Customer and Partner and/or HSO.
- “Subscription” and “Subscription License” means the right to use the Software Solution as a service on a term basis, for one or more Units.
- “Term” means the duration of a Subscription (e.g. 30 days or 12 months).
- “Units” means a metric for a particular subscription license (e.g. licensed named user seats, devices).
Usage rights and limitations
- Upon HSO’s acceptance of the Customer Order Form and for the duration of the term, Customer has the non-exclusive, non-assignable, royalty-free, worldwide limited right to use the services solely for its internal business operations and subject to the terms of this Agreement and the Customer Order Form. In doing so the Customer shall comply with any technical limitations in the Software Solution that only allow the Customer to use it. The Customer is not granted any rights to copy, modify, decompile or distribute the software as included in the SaaS. Customer may allow its users to use the services for this purpose and Customer is responsible for its users’ compliance.
- Ownership and restrictions. Customer retains all ownership and intellectual property rights in and to its data. HSO retains all ownership and intellectual property rights to the Software Solution and the services.
Intellectual property rights – infringement
- Intellectual Property Rights. All present intellectual property rights including copyright and industrial rights in the Software Solution and services and in particular to its software, databases, equipment or other materials developed or provided under the Customer Order Form, such as analyses, designs, documentation, reports, offers, as well as preparatory materials in that regard are the sole property of HSO, its licensors or its suppliers. This Agreement does not in any way purport to transfer any such rights to Customer in any respect. The Customer shall only acquire the rights of use expressly granted in these terms or by law. Any other or more extensive right of the Customer to reproduce or to modify software, databases or other materials and- to the extent prescribed by law – reverse-engineering, shall be excluded. A granted right of use to the customer shall always be non-exclusive and non-transferable to third parties.
- The Customer shall not be allowed to remove or modify any designation concerning the confidential nature or concerning copyrights, trademarks, business names or other intellectual or industrial property rights from the software or databases.
- HSO shall be allowed to take technical measures to protect the software in the SaaS or with a view to agreed restrictions in the duration of the right to use the software and/or the SaaS. The Customer shall not be allowed to remove or evade such a technical measure. In this respect, HSO adheres to the Microsoft Corporation Online Services Terms (“OST”) as made available by Microsoft Corporation from time to time on its website. HSO shall provide a copy thereof upon request of the Customer.
- Customer shall notify HSO and/or Partner as soon as practicable after Customer becomes aware of: (i) any actual, threatened or suspected infringement of any intellectual property (including know-how) in respect of the Software Solution, any related material or of any breach of confidence relating to any of the foregoing; (ii) any claim brought against Customer alleging that its use of the Software Solution, any related material any intellectual property or other rights belonging to or alleged to belong to the claimant.
Product support and product lifecycle support
- HSO does not guarantee that the Software Solution made available and held in the context of the SaaS is free of errors and functions without interruption. HSO shall make efforts to have bugs in the HSO software be fixed within a reasonable term if and insofar the Customer has provided to HSO a detailed, written description of the interruption and circumstances under which the bugs occurred, the foregoing in line with the then applicable Microsoft Online Services Consolidated SLA (“Microsoft SLA”), as made available by Microsoft Corporation from time to time on its website. HSO shall provide a copy thereof upon request of the Customer. Where there are grounds for doing so, HSO may postpone the fixing of bugs until a new version of the software is put into operation. HSO shall make available new versions of the HSO Software from time to time. More information is available under the URL: hso.com/innovation/support
- HSO has the right to charge the repair costs to Customer if HSO can demonstrate, after repairing the error, that the cause of the error cannot be attributed to HSO for one of the following reasons:
- The error was caused by Customer or a third party, or by Software changes carried out by Customer without HSO consent or authorization.
- The error was caused by Software or hardware that was not supplied by HSO.
- The error was caused by Microsoft software or by Third Party Software, and Microsoft or the third party in question has announced not to repair the error within the current version of the software.
- HSO does not guarantee that defects in the Microsoft software or in other third-party software shall be fixed. Such software shall be supported and maintained in accordance with the relevant third-party maintenance and support terms as may be applicable from time to time. More information on the applicable Microsoft Corporation maintenance and support terms for Microsoft Dynamics 365 is available under the following URL’s:
- HSO is entitled to install temporary solutions, program bypasses or problem-avoiding limitations in the software and/or the SaaS. If the software was developed on the instructions of the Customer, HSO may charge for the costs of fixing to the customer in accordance with HSO’s usual rates.
- Based on the information provided by HSO concerning measures to prevent and limit the effects of malfunctions, defects in the SaaS, corruption or loss of data or other incidents, the customer shall identify and list the risks to its organization and take additional measures if necessary. HSO declares that it is prepared to provide assistance, at the customer’s request, to the extent reasonable and according to the financial and other conditions set by HSO, with respect to further measures to be taken by the customer. HSO is never obliged to recover data that has been corrupted or lost.
- For the Software Solution of HSO, HSO makes available non-free web-based support and helpdesk services and is Customer’s point of contact and reference in respect of queries, complaints, and technical support. Web-based support and helpdesk service is available under the URL: hso.com/innovation/support
- HSO provides lifecycle support for Software Solution as defined in the Lifecycle Support section under the URL: hso.com/innovation/support. HSO strives to follow the Microsoft Dynamics 365 lifecycle policy as mentioned in Section 5 (b).
- If Customer purchased the Software Solution through Partner, then Partner is Customer’s first point of contact and reference in respect of queries, complaints and technical support and will render as much assistance as practically possible.
Maintenance time and service level agreement, services of third parties
- If and insofar as HSO, when providing the SaaS, uses software and/or services from third parties, the terms and conditions of such third parties shall apply in the relationship between HSO and the Customer with respect to such software and/or services instead of the provisions herein insofar these differ from those third-party terms and conditions. HSO shall mention on the Customer Order Form the applicable URL where these third-party terms and conditions are made available.
- Depending on the specific Software Solution and service provided under this Agreement, HSO may provide the service and/or host Customer Data with or via the Microsoft Online Services according to the OST as referred to in section 4 under c and/or the Microsoft Online Services Consolidated SLA (“Microsoft SLA”) as referred to in section 5 under a.
- If and insofar as, for whatever reason, the terms of third parties referred to above are deemed not to apply or are declared inapplicable in the relationship between the customer and HSO, the provisions of the conditions herein apply in full.
- The parties shall keep confidential all data, facts, and events that come to their knowledge in relation to the order form and of which they know or should know that public disclosure negatively impacts the interests of the other party. Information shall, in any event, be deemed confidential in the event such confidentiality is indicated by the disclosing party in writing. The Customer Order Form shall be considered confidential.
- The parties shall only use any confidential information for the purpose and during the period for which such information is made available.
- The parties shall not be obliged to keep confidential any information that is available to the public, that the receiving party already had in its position without any illegal act, that is independently developed by the receiving party or that was received from a third party without any illegal act. The parties may use any experience, know-how, and techniques that they have gained in relation to the order form and the order forms without limitation unless explicitly stated otherwise.
- Use of Customer Data. Customer Data will be used only to provide Customer the Software Solution and services including purposes compatible with providing those services. HSO will not use the Customer Data or derive information from it for any advertising or similar commercial purposes. Customer retains all right, title and interest in the Customer Data. HSO acquires no rights in Customer Data, other than the rights required by HSO to provide the Software Solution and services.
- The SaaS may imply that customer makes available to HSO any personal data for the purpose of processing within or outside of the European Economic Area (further EEA). HSO shall only process any personal data following customer’s explicit order.
- If the data is processed within a country within the EEA, the parties shall adhere to the rules and regulations following the EU General Data Protection Regulation (hereinafter: “GDPR”). In such event, the parties shall conclude a separate data processing agreement. HSO shall comply with the obligations of a processor set forth in the GDPR and the customer shall comply with the obligations of a processor set forth in the GDPR. HSO shall support customer in complying with its obligations to third parties based on the GDPR. The costs of such support shall be invoiced at the tariff listed in the tariff list.
- If the data is processed within a country outside the EEA, the parties shall adhere to the privacy laws of that respective country, whereby the customer shall be considered controller and HSO processor. The parties shall conclude a separate data processing agreement to that effect.
- Customer Responsibilities. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriate and ownership of all of its data. Customer agrees to provide any notices and obtain any consents related to its use and HSO’s provision of the Software Solution and services, including those related to the collection, use, processing, transfer and disclosure of personal information.
- Customer agrees to provide notification to the individual users of the Software Solution that their data may be processed for the purpose of disclosing it to law enforcement or other governmental authorities, and agree to obtain the users’ consent for the same.
- Customer Data Retention and Extraction. At all times during the Term of the subscription, Customer will have the ability to access and extract Customer Data. Except for free trials, HSO will retain Customer Data in a limited function account for 90 days after expiration or termination of the Subscription so that Customer may extract the data. After the 90-day retention period ends, HSO and/or Microsoft will delete the Customer Data.
Limitation of warranty and liability – disclaimer
- HSO confirms and warrants that it is the owner of and/or controls all intellectual property rights and any other rights to the Software Solution necessary to perform and administer this Agreement.
- Limited Warranty. The Software Solution is provided “as is” with all faults and, to the fullest extent permitted by law, HSO makes no other warranties or representations than described above and accepts no other conditions in relation to the Software Solution. HSO does not give any further representation, warranty or undertaking as to the effectiveness, performance, quality, merchantability, durability or fitness for any purpose of the Software Solution or any related material or documentation or services, or that the Software Solution or any related material or documentation or services supplied by HSO is free from any defect or error.
HSO’s total liability due to an attributable failure in the performance of an obligation under the Customer Order Form or on any other legal basis whatsoever, expressly including each and every failure to fulfill a warranty obligation agreed with the customer, shall be limited to compensation for direct loss up to a maximum of the price stipulated for the order form or related quotation concerned (excluding VAT, discounts and third-party costs). If the Customer Order Form mainly concerns a continuing performance obligation with a term of more than one year, the price stipulated for that Customer Order Form shall be set at the total amount of the payments (excluding VAT, discounts and third-party costs) stipulated for one year. HSO’s total liability for direct loss, on any legal basis whatsoever, shall never amount to more than 12 months subscription fees.
- Direct damages shall consist exclusively of the following:
- Damages to equipment and software of the other party;
- Reasonable costs incurred to bring the performance in compliance with the Customer Order Form (such costs shall not be compensated in the event the order form is terminated);
- Reasonable costs made in order to prevent or restrict the damage, including taking emergency measures. Cost of personnel shall not be deemed reasonable costs to prevent or restrict damage;
- Reasonable costs to repair the damage;
- Reasonable costs to determine the damage.
- Each party’s liability for indirect damages, including without limitation, consequential damages, lost profits, lost savings, loss of data and business interruption and other damage that is not listed above is excluded.
- Save for the provisions expressly laid down in these terms and/or order forms to which these terms apply, HSO does not accept any other obligations, nor does it provide any guarantees with that the services will reach customer’s aim or result set. The provisions of this article and all other limitations and exclusions of liability referred to in these terms shall also apply for the benefit of all natural persons and legal entities that HSO engages in the performance of the Customer Order Form.
Commencement of the SaaS, Subscription renewal, term, and termination
- As stated in section 3 (a) of this Agreement, the Subscription shall commence on the date that the Customer Order Form has been accepted by HSO. The SaaS is provided by HSO on a subscription- and fixed-term basis as further specified in the Customer Order Form. The provision of the SaaS shall commence on the date as specified in the Customer Order Form. The term shall automatically be extended for successive periods of twelve (12) months unless either party terminates the subscription in writing observing a notice period of 90 days prior to the end of the term. HSO receives either directly from Customer or through Partner, Customer’s written notification that Customer does not wish to renew. Otherwise, Customer agrees to pay renewal charges.
- The Customer shall promptly ensure that it has the facilities required to use the SaaS. HSO shall only provide the SaaS on the instructions of the Customer. The Customer may not allow third parties to make use of the SaaS as provided by HSO.
- The customer shall owe the payment specified in the Customer Order Form or related Quotation. In the absence of an agreed payment schedule, all amounts that relate to the SaaS provided by HSO shall be payable each calendar month in advance.
- HSO may change the content or scope of the SaaS delivery model. If such changes result in a change in the Customer’s current procedures, HSO shall inform the Customer about the matter as soon as possible and the costs of this change shall be borne by the Customer. The Customer may, in this case, give notice of termination of the contract, which termination shall then take effect on the date on which the change takes effect, unless the change is related to changes in relevant legislation or other instructions issued by competent bodies, or HSO bears the costs of the change. HSO may continue to provide The SaaS using a new or modified version of the software. HSO is not obliged to maintain, modify or add certain features or functionalities of the service or Software Solution specifically for the Customer.
- HSO may temporarily put all or part of the SaaS out of operation for preventive, corrective or adaptive maintenance or other forms of service, especially in the event Microsoft Corporation performs or announces to perform such preventive, corrective or adaptive maintenance. HSO shall endeavor to allow the period during which the service is out of operation to last longer than necessary and shall endeavor that this period occurs outside office hours unless this is not possible due to the applicable Microsoft Corporation’s service windows. HSO is never obliged to provide a physical carrier to the customer that contains the software provided to and held by the customer in the context of the SaaS.
- In addition to any other rights and remedies at law, HSO shall be entitled to terminate this Agreement forthwith by giving written notice if:
- Customer commits any breach of this Agreement and if the breach is capable of remedy, fail to remedy it within 30 days after being given a written notice containing full particulars of the breach and requiring it to be remedied; or
- Customer becomes directly or indirectly involved, in the design, development, manufacture and/or distribution of any products which compete directly with the Software Solution.
- Customer breaches HSO’s intellectual property rights.
- In the event of bankruptcy or moratorium of payment of Customer.
- In the event Customer is liquidated or ceasing its business.
- Obligations Surviving Termination. Notwithstanding any expiration or termination of this Agreement and any exercise of rights by Customer or Partner under a separate agreement hereunder, the following rights and obligations shall survive any such termination or exercise of rights necessary to permit their complete fulfillment or discharge:
- HSO’s right (or Partner’s right if applicable) to receive or recover, and Customer’s obligation to pay any fees or other sums payable which are vested in, accrued or accruable at the time of termination or exercise of such rights.
- Any rights or remedies of HSO or Partner under this Agreement, with regards any cause of action or claim of either party, whether or not accrued at the time of termination, arising from the other party’s breach of or failure to perform any obligation under this Agreement.
- In addition to the rights and obligations which survive as expressly provided in this Agreement, the Articles and Schedules which by their nature should survive, shall survive and continue after any termination or expiration hereunder.
- This Agreement is personal to Customer, Customer is not entitled to assign, mortgage, charge, or otherwise transfer or sub-license any rights under this Agreement, except with prior written approval.
- If any provision hereof is determined by a tribunal of competent jurisdiction to be illegal or unenforceable, it shall automatically be deemed conformed to the minimum requirements of law and, along with all other provisions hereof, shall thereupon be given full force and effect.
- Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity and shall not invalidate the remainder of such provision or the remaining provisions of this Agreement that shall continue in full force and effect.
- The Customer Order Form, these terms and any non-contractual obligations relating to or arising out of the order form shall be governed by and construed in accordance with Dutch law. Any disputes that may arise between HSO and customer on the basis of the Customer Order Form, any other agreement and/or any non-contractual obligations relating to or arising out of the order form or any other agreement, shall be settled through arbitration in accordance with the Arbitration Regulations of the Foundation for the Settlement of Automation Disputes (sgoa.org), without prejudice to the right of either of the parties to request an injunction in summary arbitral proceedings and without prejudice to the right of either of the parties to take precautionary legal measures.
- Notwithstanding the foregoing, the HSO and/or Partner reserve the right to seek and obtain injunctive relief, whether in the form of a temporary restraining order, preliminary injunction, injunction to enforce an arbitration award, or other order of similar import, including obtaining full payment of all fees and costs under this Agreement from any court of competent jurisdiction.