Application Access Agreement
Application Access Agreement
Terms and Conditions
This Application Access Agreement (Agreement") governs the acquisition and use of Infor Orbis Services by its Customers.
THE CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF THE CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, THE CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement was last updated on July 3rd, 2012 and is effective between the Customer and Infor Orbis as of the date of the Customer accepting this Agreement.
In this Agreement:
"Application Services" or "Service" means the functionality listed as inclusions in the relevant Edition and the associated Consulting Services that is ordered by the Customer under an Order Form and which is delivered by Infor Orbis.
"Application Services Fees" or "AAF" means fees charged for access to the functionalities listed as inclusions in the relevant Edition that is ordered by the Customer under an Order Form
"Application System" means the computer, networking and storage systems operated by or on behalf of Infor Orbis for the purpose of delivering the Application Services under this Agreement.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "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.
"Bundle Fees" means when the Application Access Fee (AAF) is bundled and billed together with non-AAF fees. These include but are not limited to QTV fees and Consulting Service Fees. Non-AAF plus any applicable surcharges noted on the Order Form, are amortized into the regular billing cycle of the AAF fees over the period of the Agreement. For example a $12,000 non-AAF fee with a surchage of 10% would be amortized into a monthly AAF billing cycle by charging an additional $1,100 on top of the regualr AAF fees each month, where the Agreement was for 12 months.
"Business Day" means all weekdays, excluding national and state public holidays in the relevant Jurisdiction.
"Business Hours" means the times set out and defined in Clause 16.8.
"Commencement Date" means the date set out on the Order Form.
"Confidential Information" means:
a) information of every form and kind or concerning:
i. the past, present or future business operations or affairs of the party;
ii. (directly or indirectly) the procedures, operations, practices, studies, feasibilities, evaluations, processes, organisation and procedures of the party;
iii. all data contained within any system used by or between the parties;
iv. any intellectual or industrial property owned or otherwise available for use by the party; and
v. the business transactions, business methods, records, forms, costings, charges, financial affairs and trade secrets of the party;
vi. including such information which is contained in:
vii. written reports, memoranda and other writings and papers or computer records or electronic databases including any technical data files; and
viii. all manuals, records, computer files and software, documents and materials generated or arising directly or indirectly out of any disclosure by the party;
ix. any information obviously confidential whether or not any such information is described as confidential;
b) any information which a party is obliged by any current legislation to keep private or confidential; and this document,
c) but not including any information which is lawfully within the public domain or files stored on the Application System
"Consequential Loss" means loss that does not arise naturally or in the usual course of things as a result of breach of this Agreement, even if such loss was in the contemplation of the parties at the Commencement Date as the probable result of breach of this Agreement.
"Customer" means the customer set out in the relevant Order Form.
"Customer Data" means all of the data and information which is owned by or in the possession of the Customer, including data and information which is, or is intended to be, stored in, processed by and retrievable from the Application Services or the computer systems operated by, or on behalf of, the Customer and any material which incorporates trademarks or brands or other material of the Customer and any Customer-related non-system data generated through use of the Application Services, such as reports, logs and statistics in their raw data form.
"Consulting Services" means the Services set out in a Statement of Work (SOW) identified on an Order Form, or where no such SOW is identified, Part 2 of the Services Catalogue.
"Defect" means any part of the Application System (including data written by the Application System) that:
a) causes an error message to be displayed to a Named User using the Application Services in accordance with the way they were designed to be used and for the Licence Purpose;
b) results in the Application System doing something that it was not designed to do; and/or
c) results in the Application System not doing something that it was designed to do, and such error or results can be replicated by Infor Orbis within its own testing environment.
"Domain Name" means the internet address a Named User types into his web browser to access the login page of the Application Services.
"Edition" means the set of functionality set out in Part 1 of the Services Catalogue
"Excused Performance Problem" means any failure by Infor Orbis to meet a Service Level or perform any of its other obligations under this Agreement which is caused or contributed to by:
a) any act or omission of the Customer; or
b) a Force Majeure Event.
"Fees" means the fees to be paid by the Customer in accordance any provision of this Agreement, including without limitation the provisions of the Pricing Model or any Order.
"Force Majeure Event" means any cause or event beyond the reasonable control of a party including (without limitation) strikes, industrial action, floods, fires, accident, earthquake, riot, explosion, war, hostility, acts of government, military, civil or regulatory authority, change in any law or regulation, disruption of communication, power or other utility.
"Insolvency Event" with respect to an entity means the happening of any of the following events:
a) an application (other than one that is dismissed within 15 Business Days) is made to a court for an order, or an order is made, that an entity be wound up;
b) an application (other than one that is dismissed within 15 Business Days) is made to a court for an order appointing a liquidator, provisional liquidator, receiver or other administrator in respect of an entity, or one of them is appointed whether or not under an order;
c) a resolution is passed to wind itself up;
d) an entity is, or states that it is, unable to pay its debts as and when they fall due; or
e) anything having a substantially similar effect to any of the events specified in paragraphs (a) to (d) above happens under the law of any applicable jurisdiction.
"Intellectual Property Rights" means all intellectual property rights, including but not limited to:
a) patents, copyright, registered designs, trademarks and any right to have confidential information kept confidential; and
b) any licence or right to use, or grant the use of or apply for registration of, any of the rights referred to in paragraph (a).
"Jurisdiction" means the relevant jurisdiction listed in Clause 16.8
"Library-only User" means a Named User who only has access to the digital asset management library (also known as Digital Asset Library or Marketing Knowledge Centre) and no other functionalities.
"Named User" means a natural person authorised by the Customer to use the Application Services regardless of whether the individual is actively using the Application Services at a given point in time. Named Users include Power Users, Reviewer-only Users and Library-only Users ordered by the Customer under an applicable Order Form.
"Notice of Access" means a notice informing the Customer that it now has access to the Application Services and is able to assign a usernames and passwords to Named Users.
"Infor Orbis" means the Infor Orbis entity set out in the relevant Order Form.
"Order" or "Order Form" means any documents for placing orders, including the Enterprise Order Form and the Quick to Value Order From and any addenda and supplements, that is entered into between the Customer and Infor Orbis, and is properly executed by both parties. By entering into an Order Form hereunder, a Customer agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
"Out-of-Pocket Basis" means expenses payable on the basis of actual invoiced amounts (excluding any profit, mark-up, rebate, administrative fee or overhead) charged to Infor Orbis by third parties.
"Power User" means a User who has full user access to all functionalities listed as inclusions in the relevant Edition that is ordered by the Customer under an Order Form.
"Reviewer-only User" means a Named User who only has access to following functionality: Ability to perform approvals within "Approvals Management with Creative Showroom"; read-only access to the Marketing Calendar; can complete a new activity request; and no other functionalities.
"Services Catalogue" means Schedule 1.
"Service Levels" mean the Service Levels set out in Schedule 1.
"Support Services" means the Services set out in Part 3 of the Services Catalogue.
"Term" has the meaning given in clause 13.1
"Territory" means the territory detailed in an Order.
"Usage Purpose" means the purpose detailed in an Order.
"Workaround" means a change to the Application Services, or a different way of using the Application System (other than not using the part of the Application Services that causes the Defect), which materially reduces the impact of a Defect.
Unless expressed to the contrary:
a) words importing:
i. the singular include the plural and vice versa
ii. any gender includes the other genders;
b) if a word or phrase is defined, cognate words and phrases have corresponding definitions;
c) reference to:
i. an obligation includes a warranty or representation and a reference to a failure to observe or perform an obligation includes a breach of warranty or representation;
ii. provisions or terms of this document or another document, agreement, understanding or arrangement includes a reference to both express and implied provisions and terms;
iii. "$" or "dollars" is a reference to the lawful currency of the Territory specified in the Order Form, unless otherwise specified. If the Territory is detailed as being "Global" then the currency will be US dollars unless otherwise specified.
d) a reference to this document includes all schedules, annexures and appendices referred to in it; and
Headings are for convenience only and do not affect the interpretation of this document.
a) Infor Orbis agrees to supply and the Customer agrees to purchase the Services on the terms and conditions of this Agreement.
b) The precise details of the Services will be set out in separate Order Forms that are incorporated into this Agreement.
c) The Customer agrees to perform its obligations under this Agreement, including those responsibilities allocated to it in the Schedules and Orders, in a timely manner and otherwise in accordance with the terms and conditions set out in this Agreement.
a) Infor Orbis agrees to supply and the Customer agrees to purchase the Services on the terms and conditions of this Agreement.
b) This Agreement consists of the following parts:
(i) General terms;
(iii) Order Forms.
c) If there is any inconsistency between the parts of this Agreement, the part listed earlier prevails to the extent of the inconsistency.
4.1 Application Services
a) Subject to the terms of this Agreement, Infor Orbis:
i. shall provide, on a non-exclusive basis, the Application Services to the Customer; and
ii. grants to the Customer, on a non-exclusive, non-transferable, revocable basis, access to the Application Services for use by the Customer,
iii. from the date that Infor Orbis gives the Customer a Notice of Access and for the remainder of the Term.
b) The Application Services may only be used:
i. for the Customer's internal business purposes; and
ii. in accordance with any restrictions set out in the relevant Order Form.
c) Infor Orbis will issue to the Customer usernames and passwords that will allow Named Users to access and use the Application Services.
d) User subscriptions are for Named Users only. The Customer must ensure that Users:
i. take all necessary steps to safeguard the issued username and password;
ii. only use their allocated username and password; and
iii. do not share any username or password.
e) Unless otherwise specified in the applicable Order:
i. the Application Services are purchased as Named User subscriptions and may be accessed by no more than the specified number of Named Users;
ii. additional Named User subscriptions may be added during the subscription term at pricing to be agreed between the Customer and Infor Orbis.
iii. the added Named User subscriptions shall terminate on the same date as the pre-existing subscriptions; and
iv. the number of Named User subscriptions purchased cannot be decreased for the duration of the applicable Order.
f) Named User subscriptions may be reassigned to new Named Users replacing former Named Users who no longer require ongoing access to or use of the Application Services.
g) Infor Orbis may audit the Customer's use of the Application Services to confirm compliance with the terms of this Agreement. If such audit identifies overuse, Infor Orbis may submit to the Customer a draft Order for the necessary additional usage rights and any resulting additional Fees. If the Customer does not sign the draft Order within 30 days, Infor Orbis may invoice the Customer for these additional Fees, which shall be payable in accordance with this Agreement.
h) The Customer warrants that any person accessing or using the Application Services using a user name or password will be an authorised Named User.
i) The Application Services shall be subject to revision by Infor Orbis from time to time upon prior written notice of not less than 10 days to the Customer during the Term to reflect changes and improvements to the Application Services provided that such modifications:
i. do not adversely affect or degrade the Application Services; and
ii. do not increase the Fees without the written consent of the Customer.
4.2 Consulting Services
a) The Customer shall provide all assistance reasonably required by Infor Orbis to carry out any Consulting Services, and without limiting the foregoing will provide the resources and perform the functions, tasks and roles set out in Schedule 1.
b) The Customer acknowledges that Infor Orbis' ability to perform the Consulting Services is dependent upon:
i. the Customer's performance of its obligations under this Agreement;
ii. the Customer's full and timely cooperation with Infor Orbis;
iii. the accuracy and completeness of any information and data which the Customer has from time to time provided to Infor Orbis; and
iv. any dependencies set out in the Schedules or any Order.
4.3 Service Levels
Infor Orbis shall perform the Services in accordance with the Service Levels and subject to the terms and conditions of this Agreement.
4.4 Third Party Applications
The Customer must at its cost obtain and maintain all licence, support and maintenance agreements in respect of Third-Party Applications necessary or desirable for Infor Orbis to provide the Services.
a) If and when the Customer wishes to obtain Services, it may request Infor Orbis to provide it with a draft Order. Infor Orbis will then prepare and provide to the Customer a draft Order.
b) When a draft Order has been agreed by the parties, the parties will sign the draft Order and it will be incorporated into this Agreement and will be governed by the terms and conditions of this Agreement.
c) There is no obligation on:
i. the Customer to request that Infor Orbis provide it with a draft Order; or
ii. Infor Orbis to agree to any Order.
6. APPLICATION SERVICE RESTRICTIONS
6.1 Restrictions on use
The Customer must not:
a) permit third parties reasonably deemed by Infor Orbis to be competitors of Infor Orbis to use or modify the Application Services;
b) provide the Application Services as a service either directly or indirectly to any third party unless authorized in writing by Infor Orbis;
c) copy, modify, enhance or adapt the Application Services;
d) unless otherwise permitted by law, reverse engineer or decompile the Application Services or any part of them;
e) allow any other person (other than Named Users) to use the Application Services or use or permit the use of the Application Services to provide any form of bureau service or for similar activities;
f) exploit the Application Services otherwise than as permitted under this Agreement;
g) based on the Application Services, attempt to create any software which has features or functionality the same as or similar to the features and functionality of the Application Services;
h) use the Application Services for any purpose other than the Usage Purpose; or
i) allow any persons outside the Territory to become a Named User.
7. INTELLECTUAL PROPERTY
a) Nothing in this Agreement conveys to the Customer any right, title or interest in the Application Services, or any Intellectual Property Rights in the Application Services, except as expressly granted under this Agreement.
b) All Intellectual Property Rights in the Application Services are the sole property of Infor Orbis. The Customer absolutely and unconditionally assigns, and must procure that its employees, officers, agents and contractors absolutely and unconditionally assign, to Infor Orbis all Intellectual Property Rights throughout the world in any modifications to the Application Services created by or on behalf of the Customer (whether or not authorised) without the need for further assurance, including all copyright in such modifications as an assignment of future property.
c) The parties agree that the Customer Data remains the property of, or vests upon creation with, the Customer. The Customer warrants that no data stored as a result of use of the Application Services will infringe any third party Intellectual Property Rights, and will indemnify Infor Orbis in relation to any claim made against Infor Orbis in the case of any such infringement.
d) Any third party software used in conjunction with the Application Services remains the property of the third party licensor.
8. WARRANTY AND INDEMNITY
a) Infor Orbis warrants that to the best of its knowledge as at the Commencement Date no part of the Application Services will infringe any third party Intellectual Property Rights, and will indemnify the Customer in relation to any claim of infringement of third party Intellectual Property Rights made against the Customer in the case of breach of such warranty. The warranty and indemnity in this clause 8(a) shall not apply if the infringement is caused or contributed to by:
i. use of the Application Services otherwise than as permitted under this Agreement;
ii. any modification of the Application Services made by or on behalf of the Customer (other than by Infor Orbis);
iii. any modification of the Application Services made by Infor Orbis to the Customer's specifications; or
iv. any use of the Application Services in conjunction with any other software (other than the Third Party Applications).
b) Infor Orbis warrants that it has all necessary rights to grant access to and use of the Application Services under clause 4.1.
c) The Customer acknowledges that:
i. the Application Services may contain errors or inaccuracies;
ii. the Application Services may not be compatible with some computing systems, hardware, software or combinations of them;
iii. it relies on its own professional skill and judgement in using the Application Services and in determining their suitability for any purpose;
d) Infor Orbis may disable access to the Application Services for any period in its discretion, including to enable repairs and maintenance or on termination of this Agreement; and
e) the Application Services may be unavailable on occasions, including due to delays in internet traffic, breakdown in telecommunications equipment, computer viruses and other acts and events beyond Infor Orbis' reasonable control.
f) Infor Orbis will provide the Customer with prior notification of planned outages.
a) To the full extent permitted by law, Infor Orbis will not be liable to the Customer for loss of profits or any Consequential Loss, whether arising from breach of this Agreement (including but not limited to fundamental breach), negligence or other tort, in equity, under statute or on any other basis, even if Infor Orbis is informed of the possibility of such losses or they are reasonably foreseeable.
b) Neither party's liability with respect to any single incident arising out of or related to this Agreement (whether in contract or tort or under any other theory of liability) shall exceed the lesser of $500,000 or the amount paid by the Customer hereunder the 12 months preceding the incident, provided that in no event shall either party's aggregate liability arising out of or related to this Agreement (whether in contract or tort or under any other theory of liability exceed the total amount paid by the Customer hereunder. The foregoing shall not limit the Customer's payment obligations under clause 10 (Charges and Payments).
c) Infor Orbis shall not be liable for any Excused Performance Problem.
10. CHARGES AND PAYMENTS
a) The Customer shall pay to Infor Orbis the Fees in accordance with the terms set out in the Fees and Payment Terms of the Order Form.
b) Fees are payable annually in advance on the anniversary of the date of the first Order ("Payment Anniversary") unless otherwise prescribed in the applicable Order Form.
c) Payment terms are strictly 30 days from the date of the invoice issued by Infor Orbis. Invoices for Services will be issued at the end of each month and on completion or as otherwise prescribed in the applicable Order Form.
d) Except as otherwise specified herein or in an Order Form, Fees are based on services purchased and not actual usage. Payment obligations are non-cancellable and fees paid are non-refundable.
e) The number of Named Users purchased cannot be decreased during the relevant term on the Order Form. When additional Named Users are added after the first Order the fees are calculated on a pro-rata basis to align to the Payment Anniversary.
f) The Customer will provide Infor Orbis will valid and updated credit card information, or with valid purchase order or alternative documents reasonably acceptable to us. If the Customer provides credit card information to Infor Orbis, the Customer authorizes Infor Orbis to charge such credit card for all Services from the initial term and any renewal terms set forth in clause 13.1(b). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form.
g) The Customer is responsible for providing complete and accurate billing and contact information to Infor Orbis and notifying Infor Orbis of any changes to such information.
h) The Customer shall reimburse Infor Orbis for third party disbursements incurred by Infor Orbis in carrying out the Services, so long as such expenditure has been agreed in advance and in writing by the Customer. Such third party disbursements shall be charged on an Out-of–Pocket basis.
i) If the Customer wishes to dispute all or part of the Fees set out in any invoice submitted by Infor Orbis under this Agreement:
i. the Customer must notify Infor Orbis of the Dispute no later than 5 Business Days after receiving that invoice;
ii. the Customer must pay the undisputed portion of the Fees in accordance with the terms set out in Schedule 3;
iii. the Dispute shall be dealt with in accordance with clause 15; and
iv. the Customer shall pay such Fees as are determined to be payable to Infor Orbis within 5 Business Days of resolution of the Dispute.
j) Unless otherwise expressly stated, all prices stated in this Agreement are exclusive of any applicable taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction. The Customer is responsible for paying all taxes associated with purchases hereunder. If the Customer is compelled to make any tax deductions, it will pay to Infor Orbis such additional amounts as are necessary to ensure receipt by Infor Orbis of the full amount which Infor Orbis would have received but for the deduction.
a) The Customer acknowledges that the Application Services and their related components and material form part of Infor Orbis' Confidential Information.
b) Each party will:
i. maintain proper and secure custody of all Confidential Information of the other party which it holds;
ii. not disclose or allow its employees, contractors or agents to disclose Confidential Information of the other party to any third party without the written consent of the other party or as required by law; and
iii. use its best endeavours to prevent the use or disclosure of Confidential Information by third parties.
c) Each party will ensure that all of its employees, contractors or agents which use or have access to Confidential Information of the other party keep the Confidential Information confidential.
d) Upon any termination or expiry of this Agreement:
i. all rights of the Customer under this Agreement to use the Application Services immediately cease; and
ii. each party will return all the property of the other party held pursuant to this Agreement to that other party.
e) Immediately upon the termination or expiration of this Agreement for any reason:
i. where the Customer is in possession of the Application System, the Customer shall deliver up the Application System, and any copies of the Application System to Infor Orbis;
ii. each party will, upon written request from the other party, subject to clause 11(a), within 3 weeks deliver up to the other party at its own cost:
a) all of the other party's Confidential Information
b) all alterations, modifications, developments and enhancements to, copies of, extracts from, or notes on the other party's Confidential Information; and
c) all materials related to or in any way associated with the Confidential Information of the other party including all technical data, specifications, pamphlets, promotional literature and all other documents, possessed by or in the control of the party, its employees, servants or agents; and
iii. if requested by a party, the other party will, instead of delivering the Confidential Information to the party, destroy the Confidential Information and certify in writing to the party that it has been destroyed.
f) The obligations of the Customer and Infor Orbis under this clause 11 will survive the termination of this Agreement and be binding on both parties for a period of five (5) years.
12. FORCE MAJEURE
a) Neither party will be liable for any delay or failure to perform its obligations under this Agreement, except the Customer's obligations to pay any Fees, as a result of a Force Majeure Event.
b) The affected party shall notify the other party as soon as practicable of any anticipated delay due to a Force Majeure Event.
c) Subject to any exceptions stated in paragraph (a) of this clause, the performance of the parties' obligations under this Agreement will be suspended for the period of the delay due to the Force Majeure Event and any period for performance of any obligation under this Agreement will be extended by such period.
13. SUSPENSION AND TERMINATION
a) The term of this Agreement (the Term) shall commence on the Commencement Date and continue for the duration set out on the Order Form, unless terminated earlier by either party under this clause 13.
b) Except as otherwise specified in the applicable Order Form, all Agreement terms shall automatically renew for additional periods equal to the first Order term, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant initial or renewal term. The pricing during any such renewal term shall be the same as that during the prior term unless Infor Orbis has given the Customer written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 10% of the pricing for the relevant Services in the immediately prior term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
a) the Customer is more than 60 days overdue in payment of any Fee under this Agreement, and the Customer's obligation to pay that Fee is not the subject of a Dispute in accordance with clause 15;
b) Infor Orbis has reasonable cause to believe that the Customer is infringing Infor Orbis' Intellectual Property Rights in the Application Services or the Application System and Infor Orbis has notified the Customer of this infringement and the Customer does not cease infringing such rights within 5 Business Days of that notification; or
c) Infor Orbis has reasonable cause to believe that the Customer is infringing the usage conditions under clauses 4 and 6 and Infor Orbis has notified the Customer of this infringement and the Customer does not cease infringing such conditions within 5 Business Days of that notification,
d) this shall be treated as a material breach of this Agreement by the Customer for the purposes of clause 13.3(a) and Infor Orbis may, as an alternative to exercising its rights under clause 13.3 (but without prejudice to those rights) suspend the provision of the Application Services until such time as the Customer causes such circumstances to cease.
Either party may terminate this Agreement with immediate effect by written notice to the other party (Defaulting Party) if:
a) the Defaulting Party commits any material breach of the provisions contained in this Agreement and does not remedy the breach within 15 Business Days after receipt of written notice requiring it to do so. If the breach is not capable of being remedied, the party not in breach is entitled to terminate this Agreement with immediate effect by written notice to the other;
b) an Insolvency Event occurs in relation to the Defaulting Party; or
c) the Defaulting Party is prohibited by any law, regulation or requirement of any government or governmental authority from complying with a material aspect of this Agreement.
13.4 Consequences of Termination by Customer
Within 30 days of termination of this Agreement by the Customer under clause 13.3(a):
a) Infor Orbis must refund to the Customer the Fees paid to Infor Orbis for the balance of the period in respect of which the Fees have been paid; and
b) The Customer must pay any part of the Fees unpaid by the Customer with respect to Services supplied to the date of termination.
13.5 Consequences of Termination by Infor Orbis
Upon termination of this Agreement by Infor Orbis, the Customer must pay any part of the Fees unpaid by the Customer with respect to Services supplied to the date of termination.
13.6 Consequences of any Suspension or Termination or Expiry
a) Any suspension under clause 13.2, termination under clause 13.3 or expiry of this Agreement is without prejudice to the rights and remedies of either party against the other in respect of any antecedent claim or breach of any of the provisions of this Agreement.
14. INSURANCE AND INDEMNITY
a) Infor Orbis warrants that it holds and will keep current insurance coverage in the relevant jurisdiction as specified in 16.8 to the amount of:
i. Workers Compensation Insurance or equivalent in accordance with applicable legislation in the relevant jurisdiction.
ii. Public liability insurance or equivalent with coverage of not less than $10,000,000 US dollars for any one occurrence.
iii. Product liability insurance or equivalent with coverage of not less than $5,000,000 US dollars for any one occurrence.
iv. Professional indemnity insurance or equivalent with coverage of not less than $5,000,000 US dollars for one occurrence.
b) Infor Orbis shall indemnify, defend and hold Customer harmless from all expenses, liabilities, losses, costs, attorney fees, damages, and judgments arising from the death of or any accident, occurrence, injury, loss or damage whatsoever caused to any natural person or to the property of any person or entity as shall occur in any part of the property due to the acts or omissions of Infor Orbis, its agents, contractors or employees, except to the extent any such injury, loss, expense, liability or damage arises from the negligence or misconduct of Customer or its employees, servants or agents.
c) The Customer shall indemnify, defend and hold Infor Orbis harmless from all expenses, liabilities, losses, costs, attorney fees, damages, and judgments arising from the death of or any accident, occurrence, injury, loss or damage whatsoever caused to any natural person or to the property of any person or entity as shall occur in any part of the property due to the acts or omissions of the Customer, its agents, contractors or employees, except to the extent any such injury, loss, expense, liability or damage arises from the negligence or misconduct of Infor Orbis or its employees, servants or agents.
a) Infor Orbis and the Customer agree to resolve any dispute arising in relation to this Agreement (Dispute) in good faith in accordance with this clause 15.
b) Where one party notifies the other party in writing of a Dispute, within 3 Business Days each party will nominate in writing to the other party a representative authorised to settle the Dispute on the party's behalf. During the next 7 Business Days the representatives shall use their best endeavours to resolve the Dispute.
c) If after such period the representatives have not resolved the Dispute or agreed on a process to resolve the Dispute, the Dispute shall be referred to another more senior employee of each of the parties for resolution. These individuals shall use their best endeavours to resolve the Dispute.
d) If the more senior employees have not resolved the Dispute or agreed on a process to resolve the Dispute within 10 Business Days, the resolution of the Dispute shall be referred to an independent third party mediator for mediation.
e) Each party shall act in good faith to ensure that the mediation proceeds expeditiously and without delay.
f) With the exception of a party seeking urgent interlocutory relief, no party may commence litigation in respect of a Dispute until such time as the process in clause 15(a) to 15(d) has been completed, or if the other party has, after 5 Business Day's notice that it has failed to comply with this process, not remedied that failure.
16.1 Whole Agreement
a) For the purposes of this clause 16.1, Pre contractual Statement means a draft, agreement, undertaking, representation, warranty, promise, assurance or arrangement of any nature whatsoever, whether or not in writing, relating to the subject matter of this Agreement made or given by any person at any time prior to the date of this Agreement.
b) This Agreement constitutes the whole and only agreement between the parties relating to the subject matter of this Agreement.
c) Except to the extent repeated in this Agreement, this Agreement supersedes and extinguishes any Pre-contractual Statement.
d) Each party acknowledges that in entering into this Agreement it is not relying upon any Pre-contractual Statement which is not set out in this Agreement.
e) No party shall have any right of action (except in the case of fraud) against any other party to this Agreement arising out of or in connection with any Pre-contractual Statement except to the extent that such Pre-contractual statement is repeated in this Agreement.
The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect or impair the continuation in force of the remainder of this Agreement.
16.3 Notices and Claims
a) All notices served by one party on the other party under or in connection with this Agreement must be:
i. in English; and
ii. delivered by hand or sent by recorded delivery post, facsimile transmission or email to the address, fax number or email address of the receiving party specified on the Order.
b) Notices sent by facsimile transmission or email must be followed by a copy of the notice sent by recorded delivery post, which shall be dispatched within 24 hours of completion of the facsimile transmission or email delivery.
c) A notice given in accordance with clauses 16.3(a) and 16.3(b) shall, in the absence of evidence that it was received earlier (in which case it shall be deemed given when actually received), be deemed given as follows:
i. if delivered by hand, when delivered to the address specified on the Order;
ii. if sent by recorded delivery post:
iii. if posted from within the same country as the delivery address,
a) 2 Business Days after it was posted; or
b) otherwise, 5 Business Days after it was posted;
i. if sent by facsimile transmission, on completion of the transmission; and
ii. if sent by email, on successful transmission of the email.
16.4 Legal costs
Each party shall bear its own legal and other costs and expenses relating directly or indirectly to the preparation of, and performance of its obligations under, this Agreement.
This Agreement may only be varied or replaced by a written document duly executed by the parties.
Neither party may assign, novate or otherwise transfer its rights under this Agreement unless the assignment or novation is to a parent or subsidiary of that party or it first obtains the prior written consent of the other party.
This Agreement may executed in any number of counterparts, each of which is an original and all of which taken together shall constitute one and the same Agreement. Either party may enter into this agreement by executing a counterpart.
16.8 Governing law, jurisdiction and Business Hours
This Agreement shall be governed and construed in accordance with the laws in force in the jurisdictions listed below.
Each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of the relevant jurisdiction and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
|You are domiciled in:||You are contracting with:||Jurisdiction:||The courts having exclusive jurisdiction are:||Business Hours|
|The United States of America, Canada, Mexico or a Country in Central or South America or the Caribbean.||Infor Orbis Inc.||California and controlling United States federal law||San Francisco, California, U.S.A.||9am to 5pmPacific Time|
|Europe||Infor Orbis EMEA Ltd.||England.||England.||9am to 5pmBritish Time|
|Australia and New Zealand.||Infor Orbis Mandatum Pty Ltd.||New South Wales and controlling Australian federal law.||New South Wales, Australia.||9am to 5pmEastern Time|
|A Country in Asia or the Pacific region, other than Australia and New Zealand.||Infor Orbis Pte Ltd.||Singapore||Singapore||9am to 5pmSingapore Time|
Schedule 1 – Services Catalog
PART 1: APPLICATION SERVICES
Application Services consist of the online, Web-based applications and modules thereof provided by Infor Orbis and accessed by the Customer via designated websites (address (es) for which will be assigned as part of the Consulting Services). Parameters such as Named Users, Territory, and Usage Purpose for the Application Services are to be detailed in Orders.
|Inclusions||Base||Advanced –Financials||Advanced -Production||Premium|
|Marketing Calendar / Planner||√||√||√||√|
|Collaboration & Workflow Management||√||√||√||√|
|Approvals Management with Creative Showroom||√||√||√||√|
|Digital Asset Library||√||√||√||√|
|Artbuild (Dynamic Asset Creation)||-||-||√||√|
|End User Support||Administrator||End-user Direct||End-user Direct||End-user Direct|
|Data Management Level*||5GB / PowerUser||5GB / PowerUser||10GB / PowerUser||10GB / PowerUser|
*Subject to maximum combined data storage of 1TB for all users regardless of Edition
Service Levels for the Application Services:
(a) Defect Correction Service Levels
(i) Time periods for Defect correction commence from the time that the Customer notifies Infor Orbis of the Defect. If Infor Orbis requires the Customer to perform an action or provide information to enable Infor Orbis to diagnose a problem, provide a Workaround or correct a Defect (e.g. to provide a screen dump), then the time taken by the Customer to perform the action or provide the information is subtracted from the time taken by Infor Orbis to diagnose the problem, provide the Workaround or correct the Defect.
|Severity Level||Severity Level Description||Workaround||Correction|
|1||Critical: The Defect results in the failure of the Application Services as a whole.||Not applicable||36 hours|
|2||Average: The Defect does not result in a failure of the Application Services as a whole; but causes the Application Services to produce incorrect, incomplete, or inconsistent results, or the Defect impairs the useability of the Application Services.||3 Business Days||10 Business Days or alternatively the next Release date where agreed in writing by the Customer.|
|3||Minor: The Defect does not cause a failure of and does not impair the usability of the Application Services, and the desired processing results are easily obtained by working around the Defect.||3 Business Days||Normal Infor Orbis product development queue.|
|4||Aesthetic/Standards/Enhancements: The Defect is the result of non-conformance to an Infor Orbis design standard, is related to the aesthetics of the Application Services, or is actually a request for an enhancement.||Not applicable||Normal Infor Orbis product development queue.|
(b) Other Services
Infor Orbis shall Use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for:
(i) planned downtime (of which Infor Orbis shall give at least 8 hours' notice via the Services and which Infor Orbis shall schedule to the extent practicable during the weekend hours from 6:00PM Friday to 3:00AM Monday Pacific Time); or
(ii) any availability caused by circumstances beyond Infor Orbis' reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Infor Orbis employees), Internet service provider failures or delays, or denial of service attacks.
PART 2: CONSULTING SERVICES
Consulting Services consist of services provided by Infor Orbis consulting personnel.
Service Levels for the Consulting Services:
|Service||Service Level provided by Infor Orbis||Responsibilities of the Customer|
|Compliance with Customer policies||Infor Orbis consultants will comply with the Customer's applicable security, health and safety policies when attending the Customer's premises or accessing the Customer's systems while performing Consulting Services.||The Customer must ensure applicable policies do not interfere with Consulting Services and must provide these to Infor Orbis for prior approval.|
|Compliance with Order||Infor Orbis consultants will comply with the requirements of the applicable Order in relation to hours of work, time recording and location of Consulting Services.||The Customer must provide full and timely cooperation to enable compliance with the Order.|
|Co-operation||Infor Orbis consultants will work towards a co-operative relationship with the Customer and its personnel.||The Customer must work towards a co-operative relationship with Infor Orbis and its personnel.|
|Proactivity||Infor Orbis consultants will promptly notify the Customer of: ||The Customer must promptly notify Infor Orbis of any such issues.|
PART 3: SUPPORT SERVICES
Support Services consist of:
(a) help-desk services;
(b) relationship management;
(c) Application Services maintenance including defect fixes and minor enhancements; and
(d) Upgrades to the Application Services.
Service Levels for the Support Services:
|Service||Service Level provided by Infor Orbis||Responsibilities of the Customer|
|Help-desk(Telephone and email support to Users of the Application Services)||Toll free number provided within the Territory.Qualified help-desk staff available during Business Hours.Response within 2 Business Hours for telephone inquiries. Response by telephone unless otherwise instructed by user.Response within 4 Business Hours for emailed inquiries. Response by email.(Response time equals the difference in Business Hours between the time the inquiry is received by Infor Orbis and the first time the user is telephoned or sent an email by Infor Orbis.)||Inquiries are related to usage of the Application Services only.Users attempt to resolve inquiry via help area in the Application Services prior to contacting the Infor Orbis help-desk.|
|Relationship Management||All duties listed in the Application Services are outside of the scope of relationship management, even though some Application Services may be performed by an Infor Orbis representative who also performs relationship management duties.Infor Orbis relationships managers will promptly respond to non-technical Customer enquiries and will attend meetings with Customer representatives as agreed.||Ensure inquiries are non-technical in nature.Customer management (including senior management) shall make themselves available at least once a quarter (six-monthly in the case of senior management such as heads of marketing) for relationship, business vision, and product roadmap discussions with Infor Orbis.|
|General Application Services maintenance including Defect corrections and Minor Enhancements||Defects will be corrected in accordance with the "Defect Correction Table" in this Schedule 1.(The Customer acknowledges that Infor Orbis is not responsible for the correction of any defects caused by or identified in any Third-Party Applications.)Determination of whether a defect reported to Infor Orbis is actually a Defect is made at the sole reasonable discretion of Infor Orbis and the Severity Level of a notified Defect is determined by Infor Orbis at its discretion after investigating the matter.Minor Enhancements are made to the Application Services from time to time, at Infor Orbis' discretion, and will be notified to the Customer where reasonably possible.||Defects must be reported on the form entitled "Defect Notification Form" (accessible in the help area of the Application Services) and sent to Infor Orbis by email.|
PART 4: OTHER SERVICES
The Customer may order other forms of services made available by Infor Orbis from time to time. The service levels for such services shall be detailed in the respective Order.