This agreement is only applicable, if explicitly referred to and ratified in your enterprise agreement with SoftwareIDM, buy mutual authorized signature. This agreement specimen is used for customers who have purchased dedicated twin instances of SaaS Hosting.
MASTER SUBSCRIPTION AND SERVICE AGREEMENT
This Master Subscription and Service Agreement (the “Agreement”), effective on __________________________(“Effective Date”), is made and entered into by and between the following parties (the “Parties”, and each, a “Party”):
“SIDM” SoftwareIDM UK Ltd
Paternoster House, 65 St Paul’s Churchyard, London EC4M 8AB
1.1 The terms and conditions of this Agreement shall extend to all current and future affiliates and operating companies ("Affiliates") of Customer. In addition to the foregoing, any Customer Affiliate which is disposed of during the term of this Agreement shall be entitled to receive the same pricing and discounts (if applicable) for a period of twelve (12) months from the date that it no longer qualifies as a Customer Affiliate.
1.2 The (i) execution of an ordering document in the format set out in Appendix 7 (Order Template) by Customer or a Customer Affiliate and SIDM or a SIDM Affiliate, specifically referencing this Agreement, or (ii) the purchase of Services through a third party reseller during the Term (each an “Order”) is an agreement by and between the applicable Customer or Customer Affiliate and SIDM or SIDM Affiliate (each an “Order Party”). Any such Order is subject to and incorporates by reference all the relevant terms and conditions of this Agreement, and in interpreting an Order, except where the context otherwise requires, references herein to ‘this Agreement’ (except in respect of Sections 1.3, 1.5, 8.2, 16 and 17) shall be deemed to be references to that Order, references to ‘Customer’ (except in respect of Section 1.3) shall be deemed to be references to Customer or the Customer Affiliate that has executed the Order, references to ‘SIDM’ shall be deemed to be references to SIDM or the SIDM Affiliate that has executed the Order, and references to ‘the Parties’ shall be deemed to refer to the Order Parties.
1.3 Customer is not an obligor or guarantor of performance with respect to the performance or non-performance of any Customer Affiliate under any Order, nor is any Customer Affiliate an obligor or guarantor of performance of Customer under this Agreement or any Order. Notwithstanding the foregoing, if Customer chooses to share the benefit of the Subscription Services with a Customer Affiliate that is not a signatory to the Order, Customer shall be responsible for the acts and omissions of such Customer Affiliate.
1.4 SIDM shall remain fully responsible for the performance of the obligations of any SIDM Affiliate that has entered into any Order, and shall have joint and several liability for such performance. SIDM may not utilize the personnel, resources or facilities of any SIDM Affiliate that is not party to the relevant Order without prior permission from Customer. Further, in performing services under any Order where SIDM does utilize the personnel, resources or facilities of any SIDM Affiliate, as between Customer and SIDM, with respect to each individual assigned by SIDM to perform any services, SIDM shall retain the same responsibilities and liabilities as SIDM has with respect to SIDM's own employees. The actions and omissions of the employees, agents, contractors or officers of the SIDM or a Subcontractor in performance of the Services shall be deemed to be the actions of the SIDM or the Subcontractor as the case may be (and in the case of the Subcontractor the SIDM shall be liable to the Customer for such actions or omissions), and the SIDM shall be vicariously liable for all such actions and omissions.
1.5 Unless otherwise set forth in this Agreement, if any terms contained in an Order are in conflict with any of the terms contained in this Agreement, the terms of this Agreement shall prevail.
1.6 If there is a conflict or inconsistency between any constituent parts of this Agreement the following order of precedence will be applied and the document higher in the order of precedence will prevail and represent the binding obligation on the Parties: (i) the Sections of this Agreement; then (ii) the Customer's Privacy and Data Protection Requirements for Suppliers incorporated into this Agreement by reference in Section 11.2; then (iii) Appendix 5 (Information Security Requirements); then (iv) the Appendices to this Agreement; and then (v) any other document incorporated into this Agreement by reference.
This Agreement shall come into effect on the Effective Date and shall continue in force through 36th months from the order date (the “Expiration Date”) unless terminated earlier or extended in accordance with its terms (the “Term”).
3.1 The SIDM shall provide online access to its hosted software, as described in Appendix 2 (Services), on a subscription basis (the “Subscription Services”) and any supplemental services such as technical support, maintenance, training, configuration or implementation services (the “Supplemental Services”) (the Subscription Services and Supplemental Services, collectively the “Services”) specified in an Order in accordance with:
(a) the Service Levels set out in https://product.identitypanel.com/hc/en-us/articles/360046716533-Service-Level-Addendum-SLA-Controlled-System; and
(b) all other provisions of this Agreement, including the policies of Customer herein, as such polices may be amended.
3.2 The Services are for the benefit of the Customer and all Customer Affiliates. The Customer and all Customer Affiliates may access and use the Services subject to the terms of this Agreement.
3.3 Customer shall utilize the Subscription Services in accordance with the Terms of Service set out in Appendix 2.1 (Terms of Service).
4. Subscription Services Changes
4.1 The SIDM may make reasonable changes to the Subscription Services from time to time, provided that there is no Detrimental Change to the Subscription Services.
4.2 If the SIDM wishes to make a change to the Subscription Services that would result in a Detrimental Change, or wishes to discontinue a Subscription Service, the SIDM shall provide the Customer with at least twelve (12) months’ written notice.
4.3 Except as specified in Sections 4.1 and 4.2, the Subscription Services may not be amended without the written agreement of both Parties.
4.4 The SDIM shall issue updated Documentation at the webpage set forth in Appendix 2 reflecting each change to the Subscription Services, within ninety (90) days’ prior to the implementation of such change.
5.1 SIDM represents and warrants that it will perform all Subscription Services:
(a) with reasonable skill and care;
(b) in accordance with the Documentation in effect as at the Effective Date;
(c) in accordance with all subsequent versions of the Documentation reflecting changes that are made in accordance with Section 4.1 and Section 4.2; and
(d) in accordance with all other specifications set forth in an Order.
5.2 SDIM represents and warrants that it will perform all Supplemental Services:
(a) in accordance with all applicable Documentation in effect as at the Effective Date;
(b) in a professional manner with the degree of skill and care that is required by current, good and sound professional procedures, using Personnel who are properly qualified, empowered, trained and resourced to execute the Services under this Agreement; and
(c) in accordance with all other specifications set forth in an Order.
5.3 SIDM represents and warrants that all Bespoke Developments provided to Customer under this Agreement will:
(a) be of a quality that meets industry standards for like material, unless specifically requested otherwise in writing by Customer;
(b) be delivered free from all defects in materials and workmanship; and
(c) conform to all specifications set forth in an Order.
6. Service Levels and Service Credits
6.1 The SIDM shall provide the Services at or above the Service Levels. The SIDM shall, by no later than the 10th day of each calendar month, provide a report to Customer that sets out the measurements of the SIDM's performance of the Services in the previous calendar month relative to the applicable Service Levels. If the SIDM fails to report on any applicable Service Level by such date, the SIDM shall be deemed to have failed to perform the Services in accordance with each applicable Service Level.
6.2 If the SIDM fails to meet a Service Level in any given calendar month, Service Credits shall become payable to the Customer in accordance with Appendix 3 (Service Levels) by the 30th of the following calendar month.
6.3 The SIDM may improve the Service Levels from time to time, upon providing the Customer with written notice, provided that there is no Detrimental Change.
7. Charges and Tax
The amounts due under an Order (if any) shall be in accordance with the pricing schedule https://softwareidm.box.com/v/pricing2020q2
(a) The Charges for the Services are exclusive of sales, use, value added tax (VAT) or other similar taxes (all such taxes being “Sales Taxes”), which are the responsibility of the Customer.
(b) With the exception of Sales Taxes, the Charges for the Services include all duties, levies, and other similar charges, (domestic or foreign) federal, state, county, withholding, property (ad valorem), stamp or other similar taxes, or customs, duties or landing fees, or other government charges however designated, whether levied on the seller or the buyer and whether based on price, charge, product, service, use, or this Agreement.
7.3 Payment Terms
(a) The SIDM will issue invoices for the Charges at the intervals specified in the Order. The SIDM shall provide all such invoices in electronic format in accordance with the format requirements and policies of the Customer as the Customer makes available to the SIDM from time to time.
(b) Subject to Section 7.4 (Disputed Charges), the Customer will pay properly invoiced amounts within forty-five (45) days after receipt of the invoice.
(c) The Customer shall remit any payment to the electronic/wire transit routing address shown on the SIDM invoice. The Customer shall not be required to remit payment via any non-electronic means.
7.4 Disputed Charges
The Customer shall have the right to withhold any Charges or other amounts that the Customer disputes in good faith.
8. Compliance with Laws
8.1 SIDM shall at all times during the Term comply with all Applicable Laws relevant to its duties, obligations and performance under this Agreement, including:
(a) Applicable Laws concerning bribery, corruption and related matters (including, without limitation, the US Foreign Corrupt Practices Act and the UK Bribery Act of 2010);
(b) economic and trade sanctions and export controls (including, without limitation, those enforced by the US, EU, UK and UN); and
(c) the Customer's Supplier Code of Conduct, available at http://www.______________________________________
8.2 For purposes of this Agreement, “Applicable Laws” means all applicable laws, ordinances, codes, regulations, standards and judicial or administrative orders, including, but not limited to, those of the US and the UK. In addition, SIDM represents and warrants that SIDM will not provide Customer with any Protected Health Information (as that term is defined in 45 C.F.R. Sec. 160.103) or with Electronic Health Records or Patient Health Records (as those terms are defined in 42 U.S.C. Sec. 17921(5), and 42 U.S.C. Sec. 17921(11), respectively) or with information from such records without the execution of a separate agreement between the Parties. Customer shall have the right to terminate this Agreement and/or any Orders in effect on no notice, without liability, for breach of any provisions of these Sections 8.1 and 8.2.
9. Customer Responsibilities
The Customer is responsible for ensuring that all Authorized Users comply with the terms of this Agreement.
10. Security and Personnel Review
10.1 The SIDM shall comply with all applicable obligations set forth in the Information Security Requirements, attached hereto as Appendix 5 (Information Security Requirements) and incorporated herein by reference
10.2 SIDM shall revise and improve SIDM's Information Security Program on an ongoing basis to remain current with good industry practice and applicable law, provided that the SIDM shall not make a change that results in the Customer having a lower standard of protection than that afforded by the Information Security Requirements.
10.3 Where SIDM Personnel have access to Customer Data or Customer’s systems, personnel or premises (each, “Access Personnel”), SIDM shall conduct a Personnel Review. The substance and manner of any and all Personnel Reviews comply with all applicable obligations set forth in the Personnel Review Requirements, attached hereto as Appendix 6 (Personnel Review Requirements) and incorporated herein by reference. Any terms used but not defined in this Section shall have the meanings provided in the Personnel Review Requirements
11. Customer Data
11.1 The SIDM shall not be entitled to use or otherwise process any Customer Data for any purpose other than to provide the Services and to perform its other obligations under this Agreement.
11.2 If SIDM is Processing any Personal Information as part of its performance under this Agreement, SIDM shall comply with all applicable obligations set forth in the most recent version of the Customer's Privacy and Data Protection Requirements for Suppliers available at http://www.___________________________________________________ and incorporated herein by reference. Any terms used but not defined in this Section shall have the meanings provided in the Customer's Privacy and Data Protection Requirements for Suppliers.
12. Confidentiality and Disclosure of Customer Data
12.1 In this Section 12, the “Disclosing Party” means the Party making a disclosure of Confidential Information to the other Party (the “Receiving Party”).
12.2 The Receiving Party shall, and shall procure that its Subcontractors shall:
(a) keep the Confidential Information confidential;
(b) not disclose the Confidential Information to any person, other than in accordance with Section 12.4, unless it first obtains the written consent of the Disclosing Party; and
(c) not use the Confidential Information other than for the Permitted Purposes.
12.3 The Receiving Party shall be liable to the Disclosing Party if any person to whom the Receiving Party disclosed Confidential Information does not comply with this Section 12.
12.4 The Receiving Party may disclose any information relating to the Services or transactions under this Agreement and Confidential Information where disclosure is required by law, by a court of competent jurisdiction or by a regulatory body or stock exchange with authority over its business or securities, provided that, where permitted by law, the Receiving Party gives the Disclosing Party as much notice of the disclosure as is practicable so that the Disclosing Party may seek a protective order. The compelled disclosure described in the preceding sentence shall not otherwise alter or affect the confidential nature of the Confidential Information.
12.5 The SIDM shall not disclose or transfer any Customer Data to any third party, except for a disclosure or transfer (a) made on the written instructions of Customer; (b) to a Subcontractor in accordance with Section 20; or (c) to the extent required by Applicable Law or any other provision of this Agreement.
12.6 In accordance with the US Defend Trade Secrets Act, SIDM acknowledges it is on notice that pursuant to 18 U.S.C. § 1833(b)(1): “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.”
13. Licensing and Rights
13.1 As between the Customer and the SIDM, Customer owns all right, title and interests in and to the Customer Data. Except as expressly provided herein, nothing in this Agreement shall operate to confer on SIDM any right, title or interest in or to any Customer Data (including all or any Intellectual Property Rights therein).
13.2 Pursuant to each Order, SIDM grants to the Customer a worldwide, non-exclusive, irrevocable, non-transferable, royalty-free, fully paid-up right for Authorized Users to access and use the Services and use all SIDM IP, to the extent necessary to use and access the Services during the Order term (as defined in the Order) for the benefit of itself, its Affiliates and its agents and contractors. “Authorized Users” means (i) employees of Customer, its Affiliates and third parties affiliated with or working for Customer, including its agents, consultants, and contractors, (ii) customers or prospective customers of Customer or any Customer Affiliates, and (iii) any other user authorised by Customer, in each case who need to use the Services and who are authorised and enabled by Customer to access and utilize the Services (including, as applicable, to perform tasks or assume responsibilities so directed by Customer or any Customer Affiliate).
13.3 The SIDM warrants that it has all rights and consents necessary to grant the license as set out in this Section 13.
13.4 The SIDM shall indemnify Customer and each Customer Affiliate and their respective directors, officers, shareholders, employees, agents, representatives, subcontractors, successors and assigns (collectively, “Customer Indemnitees”) against all liabilities, damages, costs, expenses and arising out of any claim against the Customer or a Customer Affiliate that alleges infringement of a third party’s Intellectual Property Rights, howsoever arising, as a result of or in connection with the Customer’s (or the Customer Affiliate’s) use or receipt of the Services or any SDIM IP, in each case, in accordance with this Agreement.
13.5 Customer grants to SIDM a limited license to (i) copy, process and distribute Customer Data solely to the extent necessary to allow SIDM to make such Customer Data available via the Services, but shall not use Customer Data to develop or improve any of its products and/or services and (ii) access Customer’s Authorized User accounts, including Customer Data, solely to the extent necessary to respond to service or technical problems identified by Customer and conveyed by Customer to SIDM in writing or to make Customer Data available via the Services. Except as expressly provided herein, nothing in this Agreement shall operate to confer on SDIM any right, title or interest in or to any Customer Data (including all or any Intellectual Property Rights therein).
13.6 The Intellectual Property Rights in any Customer Data created after the Effective Date will be the property of and vest in Customer absolutely from the time of their creation and SIDM hereby assigns with full title guarantee all such Intellectual Property Rights created by it in the course of providing the Services to Customer.
13.7 SIDM agrees to assign and to the fullest extent possible hereby assigns to Customer, with full title guarantee and free from all third party rights, the Intellectual Property Rights and all other rights in any and all data, information, content, material, software, deliverables or other development of the Services created by SIDM especially for Customer (a “Bespoke Development”), whether in existence now or created in the future throughout the world for the full duration of such Intellectual Property Rights. For purposes of United States copyright laws, such Bespoke Development shall be considered to be “work made for hire”.
13.8 The Customer shall not use the Service in a manner that is not contemplated or expressly permitted by this Agreement. Without limiting the foregoing, Customer shall not: (a) modify, alter or create derivative works of any SIDM IP; (b) reverse engineer, disassemble or decompile the Services; or (c) resell the Services.
SIDM shall indemnify, defend and hold harmless the Customer Indemnitees from and against any and all actual or alleged Liabilities to third parties arising out of or in connection with: (i) performance of SIDM under this Agreement or breach by SIDM of any representation, warranty or obligation contained in this Agreement, (ii) the negligence or intentional acts or omissions of SIDM or any SIDM Personnel, (iii) any contract or commitment entered into or made by SIDM with any third party that provides goods, materials or services to SIDM, (iv) any other Claim involving the Services or any Bespoke Development, except to the extent solely attributable to the fraud, gross negligence or wilful misconduct of Customer, in each case as determined by a court of competent jurisdiction and (v) any other act, error or omission giving rise to civil liability arising out of business activities performed for Customer.
Customer shall have the right to audit SIDM Business Continuity Program and IT Disaster Recovery / Technical Resiliency Program and privacy and security policies and operations related to this Agreement during the Term and for a subsequent one (1) year period. Such audits may include, but are not limited to, a review of the SIDM's business continuity, disaster recovery, security and privacy plans and practices and SIDM's access to and use of Customer Data and Personal Information (as defined in Section 11.2). SIDM shall reasonably cooperate and assist Customer with such audit.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY. WITH RESPECT TO EACH ORDER, IN NO EVENT SHALL CUSTOMER BE LIABLE TO SIDM FOR AGGREGATE DAMAGES IN EXCESS OF THE TOTAL CHARGES PAID OR PAYABLE TO SIDM UNDER SUCH ORDER IN THE 12 MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. WITH RESPECT TO EACH ORDER, IN NO EVENT SHALL SIDM BE LIABLE TO CUSTOMER OR ANY INDIVIDUAL CUSTOMER AFFILIATE FOR DAMAGES IN EXCESS OF THREE TIMES THE TOTAL CHARGES PAID OR PAYABLE UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY OR $2,000,000, WHICHEVER IS GREATER. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THIS SECTION DO NOT APPLY TO (I) ANY LIABILITIES OR OBLIGATIONS UNDER THE SECTIONS ENTITLED OR NUMBERED (AS APPLICABLE) COMPLIANCE WITH LAWS, 13.4, CUSTOMER DATA, CONFIDENTIALITY AND DISCLOSURE OF CUSTOMER DATA, INDEMNIFICATION, SECURITY AND PERSONNEL REVIEW OR RESILIENCY REQUIREMENTS OF THIS AGREEMENT; (II) ANY CLAIMS FOR DEATH OR PERSONAL INJURY; (III) ANY CLAIMS RESULTING FROM GROSS NEGLIGENCE OR WILFUL MISCONDUCT OR FRAUD OF A PARTY; OR (IV) ANY OTHER FORMS OF LIABILITY WHICH BY LAW CANNOT BE LIMITED OR EXCLUDED.
17.1 The Customer may terminate this Agreement and/or any Order at any time for convenience upon providing thirty (30) days’ written notice to the SIDM or immediately if (a) the SIDM suspends the Services in circumstances in which the Customer disputes the SIDM is entitled to do so or (b) a claim arises that is subject to SIDM's indemnification obligations under this Agreement.
17.2 Either Party may terminate this Agreement and/or any Order immediately upon giving written notice to the other if the other Party commits a material breach of this Agreement that is not capable of remedy, or if it is capable of remedy, was not remedied by the other Party within thirty (30) days after a written notice to do so.
17.3 The Customer may terminate this Agreement and/or any Order immediately upon giving written notice to the SIDM if the SIDM fails to achieve (a) two (2) or more Services Levels in any rolling five (5) month period or (b) to the extent the applicable Order sets out an additional Service Level termination threshold, the threshold set out in such Order.
18. Effect of Termination
18.1 Each Party shall immediately return or destroy all Confidential Information of the other Party that is in its control or possession, except to the extent that a Party is required to retain such Confidential Information pursuant to Applicable Law.
18.2 The Customer remains responsible for the payment of all undisputed invoices issued in respect of the period preceding the effective date of termination.
18.3 If the Customer has paid fees in advance in respect of any period following the effective date of termination, the SIDM shall refund such amounts to the Customer within ten (10) days after the effective date of termination.
18.4 In the event that this Agreement or any Order expires or terminates for any reason, SIDM shall, at the request of Customer, cooperate with Customer to transition the Services to Customer (or to Customer’s designated representative) while mitigating against any interruption or adverse impact on Customer’s business operations to the extent commercially reasonable (the “Service Transition”).
19. Data Retention and Deletion
19.1 The SIDM shall ensure that at all times during the Term the Customer will have the ability to access and extract Customer Data stored in the Services at no additional cost to the Customer.
19.2 SIDM will retain Customer Data stored in the Services for ninety (90) days after expiration or termination of this Agreement so that Customer may extract the Customer Data.
19.3 Within thirty (30) days after the ninety (90) day retention period ends, the SIDM will permanently and irretrievably delete the Customer Data unless Applicable Law requires otherwise.
20. Use of Subcontractors
20.1 SIDM may use Subcontractors in connection with the provision of the Services subject to Customer’s prior written approval.
20.2 The SIDM shall ensure that Subcontractors are permitted to process Customer Data only to the extent necessary to provide the Services SIDM has engaged them to provide. SIDM remains responsible for its Subcontractors’ compliance with SIDM's obligations in this Agreement.
20.3 If Customer Data is processed by a Subcontractor, the SIDM shall ensure that the Subcontractor’s processing is carried out under a written contract imposing on the Subcontractor the same obligations as are imposed on the SIDM under this Agreement; and procure that the Subcontractor performs and observes those obligations.
21. Off-Payroll Workers Provided Through Intermediaries
21.1 SIDM agrees that it will not provide to Customer any workers, independent contractors, subcontractors, assignees, or third parties performing Services (in this Section 21 referred to as “Off-Payroll Workers”) where that Off-Payroll Worker is, directly or indirectly, provided to SIDM via an entity or person (such as a personal service company or partnership) which is acting as an intermediary (each entity or person being an “Intermediary”) unless it first discloses this fact to Customer and the assignment follows the express written consent of Customer, which may be withheld on a case-by-case basis in Customer’s sole discretion.
21.2 SIDM will fully assist Customer in all matters relating to the identification of any Intermediaries in its supply chain, notifying Customer as soon as reasonably practicable upon the discovery of any Intermediary not previously disclosed to Customer.
21.3 The disclosure of any Intermediaries to Customer shall (where relevant) detail whether the Off-Payroll Workers are providing either (i) an Outsourced Service; or (ii) a Personal Service/Supply of Labour.
21.4 SIDM shall indemnify and hold harmless Customer from and against any and all damages, liabilities, costs and expenses as a result of any failure to disclose an Off-Payroll Worker provided via an Intermediary, or any of the other information required to be provided in accordance with Sections 21.1, 21.2 and 21.3, above.
21.5 In respect of each Off-Payroll Worker provided through an Intermediary (other than those identified as providing an Outsourced Service), prior to the commencement of each assignment, Customer shall (acting fairly and reasonably) make a determination with respect to the employment status of each Off-Payroll Worker in relation to Customer and provide copies of the status determination statement to the SIDM and the Off-Payroll Worker, and SIDM shall provide reasonable cooperation to enable Customer to make such determination.
21.6 If representations are made to Customer that the conclusion mentioned in a status determination statement is incorrect then Customer shall, before of the end of the period of forty-five (45) days beginning with the day the relevant representations are received, either (i) inform the Off-Payroll Worker or (as the case may be) the relevant Intermediary that it has considered the representations and has decided that the conclusion is correct; or (ii) give to the Off-Payroll Worker and (as the case may be) the relevant Intermediary a new status determination statement which contains a different conclusion and states that the previous status determination statement is withdrawn.
21.7 Following a determination of employment status in respect of any Off-Payroll Worker pursuant to Section 21, the SIDM will procure that withholdings for income tax and National Insurance Contributions are made in accordance with Section 61R Chapter 10 ITEPA 2003 and Regulation 18 Social Security Contributions (Intermediaries) Regulations 2000. In addition, pending the resolution of a dispute under Section 21, an Off-Payroll Worker will be assumed to be a deemed employee for the purpose of the assessment referred to in Section 21, and the SIDM will procure that withholdings for income tax and National Insurance Contributions are made accordingly.
22.1 The SIDM shall maintain, at its expense, the following insurance with a reputable insurance company with an S&P rating of A- or better:
(a) Worker’s Compensation insurance for all of its employees connected with the Services;
(b) Commercial General Liability insurance including coverage for broad form property damage, bodily injury, personal injury, blanket contractual liability, and products/completed operations (combined single limit of $2,000,000 per occurrence and in the aggregate). Such general liability insurance shall name the Customer and its Affiliates as an additional insured; the insurer shall waive its right of subrogation against Customer, and this policy shall be considered primary and noncontributory over any other valid and collectible insurance;
(c) Professional liability insurance and other insurance policies with reputable insurers as are reasonable and adequate to provide coverage for its obligations and liabilities under this Agreement for the full duration of such obligations and liabilities, including, but not limited to an Errors and Omissions Liability Insurance Policy in a minimum amount of $2,000,000 aggregate coverage per policy year. Such insurance shall be maintained in force at all times during the Term of the Agreement and for a period of 3 years thereafter for Services completed during the Term of the Agreement. Customer shall be given at least 30 days’ written notice of the cancellation or expiration of the aforementioned insurance for any reason; and
(d) Cyber liability insurance including Technology Errors and Omissions, Network Security and Privacy Liability in a minimum amount of $5,000,000 per occurrence and $10,000,000 in the aggregate coverage per policy year. Such insurance shall be maintained in force at all times during the Term of the Agreement and for a period of 3 years thereafter for Services completed during the Term of the Agreement. Customer shall be given at least 30 days’ written notice of the cancellation or expiration of the aforementioned insurance for any reason.
The SIDM shall, upon request, produce to the Customer the SIDM's policies of insurance, together with the receipt for the payment of the last premium in respect of each policy, or produce documentary evidence that the policy or policies are in force. Upon request, the SIDM shall provide certificates of insurance in compliance with the above requirements.
23. Use of Trademarks; No Endorsement
Any use by SIDM (including, but not limited to, in promotional or marketing material and lists of SIDM's customers) of any name, trade name, trademark or service mark or similar indicia of any Customer entity shall be subject to the prior written approval of Customer. SIDM shall not represent directly or indirectly that any Bespoke Development or Service provided by SIDM to Customer has been approved or endorsed by Customer, or include the name, trade name, trademark, or symbol of Customer on a list of SIDM's customers, without Customer’s express written consent.
24. Resiliency Requirements
SIDM shall have in place documented policies and procedures, which shall be reviewed, and, if appropriate, tested and updated, at least annually, covering the administrative, physical and technical considerations in place and relevant to (i) sustaining SIDM business operations in the event of disruption to ensure consistency, sustained performance and provision of goods and/or services to Customer and/or its Affiliates (a “Business Continuity Program”) and (ii) the process of getting all important SIDM information technology infrastructure and business operations up and running in the event of disruption (an “IT Disaster Recovery / Technical Resiliency Program”).
25.1 Assignment. This Agreement may not be transferred by one Party without the advance written permission of the other Party, which consent shall not be unreasonably withheld, except that Customer may assign this Agreement or any license pursuant to a divestiture, merger or reorganization, or due to the sale of substantially all of its stock or assets.
25.2 Entire Agreement. This Agreement, including the Appendices incorporated in this Agreement, is the entire agreement between Customer and SIDM with regard to the Services, and any other items provided under this Agreement. This Agreement supersedes all prior proposals and agreements with regard to the Services, whether written or oral, and all other written and oral communications between Customer and SIDM. The terms and conditions of this Agreement will supersede all other terms and conditions submitted by Customer, including any pre-printed terms on any of Customer’s purchase orders. Neither Party has relied on any representations, proposals, presentations or communications, except as provided in this Agreement.
25.3 Amendment. Subject to Sections 4.1 and 4.2, only a written document signed by authorized representatives of Customer and SIDM will modify this Agreement.
25.4 Governing Law and Forum. This Agreement shall be subject to interpretation in accordance with the laws of the State of Illinois, USA, notwithstanding its conflict of law provisions, and each Party consents to the exclusive jurisdiction and venue of the courts located in Cook County, Illinois for all matters subject to a mutual waiver of jury trial.
25.5 Notices. All notices provided for in this Agreement shall be in writing and shall be sent to the Parties, by either registered or certified mail, return receipt requested, at the addresses set forth below. If an email address is provided by a Party below, notices may be provided via email to that Party in addition to sending by mail.
If to Customer:
If to SIDM:
213 W. Wesley Street, Suite 200
Wheaton, IL 60187
25.6 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall be deemed the same agreement.
25.7 Severability. If any provision of this Agreement, or the application of any such provision to any person or circumstance, is declared judicially to be invalid, unenforceable or void, such decision will not have the effect of invalidating or voiding the remainder of this Agreement, and it is the intent and agreement of the Parties that this Agreement will be deemed amended by modifying such provision to the extent necessary to render it valid, legal and enforceable while preserving its intent or, if such modification is not possible, by substituting therefor another provision that is legal and enforceable and that achieves the same objective in all material respects.
25.8 Waiver of Default. No purported waiver by either Party of any default by the other Party of any term or provision contained herein (whether by omission, delay or otherwise) shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving Party. No such waiver in any event shall be deemed a waiver of any subsequent default under the same or any other term or provision contained herein. The rights and remedies of a Party relating to this Agreement shall be cumulative.
25.9 Survival. Any terms of this Agreement which, by their nature extend beyond its termination or cancellation, remain in effect until fulfilled and apply to respective successors and assigns. These terms include Appendix 1 (Definitions), Section 7 (Charges & Tax), Section 11 (Customer Data), Section 12 (Confidentiality & Disclosure of Customer Data), Sections 13.1, 13.4, 13.6-13.7, Section 15 (Audit), Section 14 (Indemnification), Section 16 (Liability), Section 17 (Termination), Section 18 (Effect of Termination), Section 19 (Data Retention and Deletion), Section 21 (Off-Payroll Workers Provided Through Intermediaries) and Section 25 (General).
25.10 Equal Employment Opportunities. Unless exempt, the SIDM (and any SIDM Affiliate and Subcontractor) shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. If applicable, the SIDM (and SIDM Affiliate and Subcontractor) shall also abide by the requirements 41 CFR § 61-300.10 regarding veterans’ employment reports and 29 CFR Part 471, Appendix A to Subpart A regarding posting a notice of employee rights.
25.11 Independent Contractors. Nothing in this Agreement shall make the SIDM and the Customer partners, joint venturers, or otherwise associated in or with the business of the other. The SIDM is and shall always remain an independent contractor. Neither Party shall be liable for any debts, accounts, obligations, or other liabilities of the other Party, its agents, or employees. The Parties are not authorized to incur debts or obligations of any kind, on the part of or as agent for the other except as may specifically be authorized in writing.
SoftwareIDM Inc. to sign here Customer to sign here
APPENDIX 1 -- DEFINITIONS
Definitions. In this Agreement:
(a) Affiliate means, in relation to a Party, each entity that it Controls or is under common Control with that Party’s ultimate parent company; and
(b) Charges means the fee payable to the Vendor pursuant to this Agreement as set out in Appendix 4 (Charges) for each type of Service;
(c) Confidential Information means this Agreement and all information of a confidential nature that is marked with a restrictive legend of the Disclosing Party, or that is clearly identified as confidential at the time of disclosure, or that is manifestly of a confidential nature, disclosed (by whatever means, directly or indirectly) by either Party (or the Disclosing Party’s subcontractors, agents, consultants or employees) to the other Party (or that Receiving Party’s subcontractors, agents, consultants or employees) and which relates to the Disclosing Party’s business, including any information of a confidential nature relating to the products, operations, processes, plans, intentions, product information, market opportunities or business affairs of the Party making the disclosure or its contractors, suppliers, customers, clients or other contacts, and Customer Data;
(d) Contract Year means with respect to each Order, the period starting on the Order Effective Date and ending on the first anniversary of such date, and each successive period of twelve (12) months thereafter;
(e) Control means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Party, whether through the ownership of voting securities, by contract, or otherwise, and “Controls” and “Controlled” shall be construed accordingly;
(f) Customer Data means all data of the Customer and Customer Affiliates (including personal data), that is processed by the Vendor under this Agreement including, but not limited to, data that is uploaded to the Services by or on behalf of the Customer or Customer Affiliates, and data that is generated by or on behalf of the Vendor in providing the Services (whether or not using Vendor’s software/Services and/or existing materials) including aggregate data and derived data;
(g) Detrimental Change means, in respect of a change to the Subscription Services, a change that:
(i) would have a material adverse impact to the Customer’s use or enjoyment of the Subscription Services; and/or
(ii) would result in a reduction in the availability or functionality available to the Customer;
(h) Documentation means all materials, documentation, specifications, technical manuals, user manuals, flow diagrams, file descriptions and other written information that describes the function and use of the Services, as set forth in Appendix 2 as at the Effective Date, and updated in accordance with Section 4.4 from time to time;
(i) Intellectual Property Rights or IPR means patents, registered designs, trademarks and service marks (whether registered or not), copyright, database rights, design rights and moral rights, in each case existing in any jurisdiction in the world, and other property rights in other jurisdictions that grant similar rights as the foregoing, including those subsisting in inventions, drawings, performances, software, databases, business names, goodwill and the style of presentation of goods and services and in applications for the protection thereof;
(j) Order Effective Date means the effective date set forth in the relevant Order.
(k) Permitted Purposes means the performance of the relevant Party’s obligations under this Agreement, and, where the relevant Party is the Customer it also means: (i) the receipt and use of the Services; and (ii) the provision of Services to the Customer or the Customer Affiliates;
(l) Personnel means employees and contractors, and employees of Subcontractors, of the Vendor;
(m) Service Credits means the credit against the Charges (of an amount calculated in accordance with Appendix 3 (Service Levels) to be applied by the Vendor if it fails to meet or exceed one or more Service Levels;
(n) Service Levels means each level of performance of the Services set out in Appendix 2 (Services);
(o) Subcontractor means a subcontractor of the Vendor, appointed (directly or indirectly) to perform any of the Vendor’s obligations under this Agreement or to process any of the Customer Data;
(p) Vendor IP means all software, systems, hardware and other IPR:
(i) comprising the Services; and
(ii) used by the Vendor in the provision of the Services; and/or
(iii) made available by the Vendor in the provision of the Services;