Version 2.0 — Effective 31 July 2019
THESE ENTERPRISE BOT PROFESSIONAL SERVICES TERMS (“TERMS” OR “AGREEMENT”), INCLUDING ANY APPLICABLE ADDENDA, ANNEXES, EXHIBITS, ETC., CONSTITUTE A LEGAL AGREEMENT BETWEEN CUSTOMER AND ENTERPRISE BOT GMBH WITH ITS PRIMARY PLACE OF BUSINESS AT BAARERSTRASSE 135, 6300 ZUG, SWITZERLAND (“ENTERPRISE BOT”).
CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
BY ACCEPTING THIS AGREEMENT, BY EXECUTING AN SOW THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO BE BOUND BY THE TERMS.
In the event of any conflict between these Terms and the SaaS Agreement as pertains to Enterprise Bot Professional Services only, these Terms shall prevail to the extent of any inconsistency. In the event of any conflict between these Terms and any Statement of Work executed hereunder, these Terms shall prevail to the extent of any inconsistency, except with regard to any provision of any Statement of Work that specifically identifies a conflicting provision of these Terms and states that the conflicting provision of these Terms does not prevail.
1.1 “API” means the application programming interface(s) used by or on behalf of Customer to access the Services.
1.2 “Effective Date” means the date that Customer signs the applicable SOW.
1.3 “Platform” means the SDK and the Services.
1.4 “SaaS Agreement” means the master subscription agreement entered into between Customer and Enterprise Bot on or around the date hereof for the purchase of the Platform.
1.5 “SDK” means any and all software development kit (SDK) provided or managed by Enterprise Bot under an Order Form.
1.6 “Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal, or provided to Customer under a free trial, and made available online by Enterprise Bot, including the API, the Administrative Console and associated Enterprise Bot offline or mobile components.
1.7 “SOW” means a statement of work for Professional Services entered into between Customer and Enterprise Bot.
2. Professional Services
2.1 Scope. Enterprise Bot will provide such professional services as are specifically described in the applicable SOW (“Professional Services”), and Customer will reasonably cooperate with Enterprise Bot with regard to performance of Professional Services. The requirements of a SOW may be altered only through a change order executed by both parties.
2.2 Acceptance. Unless otherwise set forth in a SOW, configured software environments and other materials provided through Professional Services (“Deliverables”) will be considered accepted upon written notice thereof from Customer or 5 business days from delivery if Customer has not first provided written notice of rejection, provided Customer may only reject Deliverables to the extent that they materially fail to conform to their specifications set forth in the SOW. To be effective pursuant to the preceding sentence, notice of rejection must specifically disclose the Deliverable’s material failure to conform to its specifications. In response to rejection, Enterprise Bot may revise and redeliver the Deliverable, and thereafter the procedures of this Section 3.2 will repeat.
2.3 Subcontracting. Enterprise Bot may subcontract any portion of its obligations under a SOW to a third party. With respect to any such obligations of Enterprise Bot performed by subcontractors, Enterprise Bot shall be and shall remain responsible for such obligations and the performance of Professional Services and creation of Deliverables hereunder by all of its subcontractors and for the acts and omissions of all such subcontractors.
3. Fees and Payment
3.1 Fees. Customer will pay all fees specified in SOWs. Except as otherwise specified herein or in an SOW, (a) all fees are quoted in Swiss Francs, and (b) fees paid are non-refundable.
3.2 Invoicing and Payment. Fees for the relevant Professional Services will be invoiced in accordance with the terms set forth in the relevant SOW and paid by credit card or bank transfer. Enterprise Bot will invoice Customer via email and otherwise in accordance with the relevant SOW. Unless otherwise stated in the SOW, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Enterprise Bot and notifying Enterprise Bot of any changes to such information.
3.3 Overdue Charges. If any invoiced amount is not received by Enterprise Bot by the due date, then without limiting Enterprise Bot’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
3.4 Payment Disputes. Enterprise Bot will not exercise its rights under the “Overdue Charges” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
3.5 Taxes. Enterprise Bot's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Enterprise Bot has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Enterprise Bot will invoice Customer and Customer will pay that amount unless Customer provides Enterprise Bot with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Enterprise Bot is solely responsible for taxes assessable against it based on its income, property and employees.
3.6 Other Expenses. Customer shall reimburse Enterprise Bot for travel time and other expenses incurred in performance of Professional Services pursuant to the Enterprise Bot travel policy, so long as Customer has previously approved the expense or range of expenses in question.
4. Intellectual Property in Deliverables
4.1 Enterprise Bot owns and retains ownership of all Deliverables, including, without limitation, software, source code, binary files, or other materials, whether preexisting or created under a SOW, and whether provided standalone or incorporated into Deliverables. Customer receives no intellectual property rights to any Deliverable. Customer’s sole right with regard to Deliverables is to use them in conjunction with the Platform during the applicable Subscription Term(s). Enterprise Bot does not acquire any intellectual property rights or any other rights in the Customer Data, Confidential Information, products, systems, software, hardware, or networks provided by or on behalf of Customer and being used by Enterprise Bot in connection with the provision of Professional Services under this Agreement.
5.1 Intellectual Property. Enterprise Bot represents and warrants that, to the best of its knowledge as of the date of delivery, no Deliverable will infringe upon the intellectual property rights of any third party. Enterprise Bot’s sole responsibility and liability for breach of the warranty in the preceding sentence, and Customer’s sole remedy, shall be for Enterprise Bot: (1) to substitute substantially functionally similar products or services for the infringing Deliverable; (2) to procure for Customer the right to continue using the Deliverable; or if neither of the foregoing is commercially practical in Enterprise Bot’s reasonable judgment, (3) to suspend use of the Deliverable in question and refund to Customer 1/36th of the fees paid for every month during which Customer is prevented from using it as a result of such infringement, during the first three years after delivery.
5.2 Professionalism & Function. Enterprise Bot warrants that all Professional Services will be performed in a professional manner and materially in conformance with the SOW. Enterprise Bot further warrants that Deliverables will conform to their specifications set forth in the SOW. Customer’s sole remedy and Enterprise Bot’s sole liability and responsibility for breach of any warranty in this Section 7.2 shall be for Enterprise Bot to re-perform the Professional Services in question, including creation of Deliverables.
5.3 Integration with Non-Enterprise Bot Applications. To the extent Enterprise Bot provides support to enable integration of the Services with Non-Enterprise Bot Applications, the warranties set forth above only apply to the Professional Services and Deliverables provided by Enterprise Bot, and not any Non-Enterprise Bot Applications.
6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Enterprise Bot includes the Platform, and the terms and conditions of this Agreement and all SOWs (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Enterprise Bot services.
6.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any SOW to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Enterprise Bot may disclose the terms of this Agreement and any applicable SOW to a subcontractor to the extent necessary to perform Enterprise Bot’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
6.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the section “Confidentiality” (including subsections), the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
7.1 Indemnification by Enterprise Bot. Enterprise Bot will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of any Deliverable as contemplated hereunder infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Enterprise Bot in writing of, a Claim Against Customer, provided Customer (a) promptly gives Enterprise Bot written notice of the Claim Against Customer, (b) gives Enterprise Bot sole control of the defense and settlement of the Claim Against Customer (except that Enterprise Bot may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Enterprise Bot all reasonable assistance, at Enterprise Bot’s expense.
The above defense and indemnification obligations do not apply if (a) the allegation does not state with specificity that the Deliverable is the basis of the Claim Against Customer; (b) a Claim Against Customer arises from the use or combination of the Deliverable or any part thereof with software, hardware, data, or processes not provided by Enterprise Bot, if the Deliverable or use thereof would not infringe without such combination; (c) a Claim Against Customer arises from Deliverables under an SOW for which there is no charge; (d) a Claim against Customer arises from a Non-Enterprise Bot Application or Customer’s breach of this Agreement, the Documentation or applicable SOWs, (e) a Claim against Customer results in whole or in part from Customer specifications or modifications, (f) Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement.
7.2 Exclusive Remedy. This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
8.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
8.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9. Relationship with the Platform & the Saas Agreement
9.1 Platform vs. Professional Services. Professional Services are not part of the Platform or the Services.
9.2 Construction. Neither party’s acts or omissions related to Professional Services, to a SOW, or to this Agreement, including without limitation breach of a SOW or of this Agreement, will give the other party any rights or remedies not directly related to the SOW in question. For instance, Enterprise Bot’s breach of a SOW that does not otherwise violate Enterprise Bot’s obligations under the SaaS Agreement will not give Customer any rights or remedies not directly related to the SOW in question, including the right to terminate the SaaS Agreement or the right to a refund of fees paid for the Enterprise Bot Platform or of other fees paid not pursuant to such SOW. This, however, does not limit any other rights or remedies that Customer may have under the SaaS Agreement related to Enterprise Bot’s obligations.
10. Term and Termination
10.1 Term. Each SOW will continue for the term set forth therein, if any.
10.2 Termination. Unless the SOW provides to the contrary, Customer may terminate a SOW for convenience upon 30 days’ written notice to Enterprise Bot. A party may terminate an SOW for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.3 Effect of Termination. Upon termination of a SOW: (1) if such SOW provides for an hourly or per unit fee, Customer will pay Enterprise Bot such fee for the work performed up to the date of termination; and (2) if the SOW provides for a fixed fee, Customer will pay Enterprise Bot the reasonable value of the Professional Services received from Enterprise Bot up to the termination date. Termination of a SOW for any reason, including without limitation breach, will not terminate any other SOW or these Terms or the Agreement.
11. General Provisions
11.1 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
11.2 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all SOWs executed hereunder, constitute the entire agreement between the parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding SOWs) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
11.3 Order of Precedence. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or SOW executed hereunder, the terms of this Agreement shall prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or SOW that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail.
11.4 Modification. Unless otherwise specified in the preamble of this Agreement, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
11.5 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
11.6 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
11.7 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
11.8 Cumulative Remedies. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.9 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.10 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all SOWs), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, the sections “Effect of Termination” will apply. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.11 Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
11.12 Governing Law. This Agreement and all claims arising from it shall be exclusively governed by the law of the Swiss Confederation to the exclusion of the provisions of Private International Law (PIL) and the UN Convention on Contracts for the International Sale of Goods (CISG).
11.13 Venue. Zug, Switzerland is agreed as the exclusive place of jurisdiction for all disputes arising in connection with the fulfillment of this contractual relationship. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.