1. ALTURA PUBLISHING, SA, incorporated and registered in Portugal with company tax number 510 253 539 whose registered office is at Rua Castilho, 59 4° dto. 1250-068 Lisbon, Portugal ("bugle");
And the customer
2. , incorporated under the laws, with registered office at |customer address| The parties listed under (1) and (2) may individually be referred to as a “Party” and jointly as the “Parties”. This Agreement sets forth the terms and conditions governing bugle’s performance of the services described herein.
In these Terms of Service, the following expressions shall (unless the context requires otherwise) have the following meanings:
"Affiliate" means any entity that from time to time directly or indirectly controls, is controlled by, or is under common control with customer or bugle, as applicable.
"Fees" means the fees for the SaaS services as detailed in clause 4.
"Confidential Information" means any information obtained by one party from the other as a result of this Agreement, and which either is identified as confidential or is manifestly of a confidential nature (including for the avoidance of doubt any information relating to the business or its customers).
"Data controller", "data processor", "data subject", "personal data", "processing" shall be interpreted in accordance with Directive 95/46/EC and, after 25th May 2018, in accordance with the General Data Protection Regulation, or other applicable Data Protection Legislation.
"General Data Protection Regulation" means Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
"Data Protection Legislation" means European Directives 95/46 and 20 0 2/58/EC and any legislation and/or regulation implemented or made pursuant to them, or which amends, replaces, re-enacts or consolidates any of them (including the General Data Protection Regulation), and all other applicable laws relating to processing of personal data and privacy that may exist in any relevant jurisdiction, including, where applicable, the guidance and codes of practice issued by supervisory authorities.
"Services" means the delivery of the Software in accordance with the terms of these Terms of Service. "Documentation" means the online user manuals for the SaaS service, as updated from time to time, that describe the functions, operation, and use of the SaaS service, and that bugle makes generally available to subscribers of the SaaS service.
"Force Majeure Event" means acts of God, strikes (other than strikes involving the work force of the party claiming Force Majeure Event), commotion, riots, war, fire, explosion, storm, flood, or any other cause beyond a party's reasonable control.
"Good Industry Practice" means the exercise of that degree of skill, diligence, prudence and operating practice which, at the relevant time, would reasonably and ordinarily be expected from a skilled and experienced data processor engaged in the same or a similar business and seeking, in good faith, to comply with its obligations.
"Initial Term" means the initial term of this Agreement.
"Input IPR" means any and all Intellectual Property Rights residing within the materials and information (including without limitation the customer Data) provided by the customer to bugle during the Term.
"Insolvent" in relation to either party, means (a) that a resolution has been passed for winding-up that party (save for the purposes of amalgamation or reconstruction where the amalgamated or reconstructed company agrees to adhere to this Agreement), that a winding-up order has been made against it, or that it has gone into administration; (b) that a receiver or administrative receiver has been appointed or an encumbrancer has taken possession of the undertaking or assets ( or any part thereof) of that party; or ( c) that the party is unable to pay its debts, has ceased or threatened to cease to carry on its business, or entered into a composition with its creditors.
"Intellectual Property Rights" means copyright, database rights, trade and service marks, topography rights, trade and business names, rights in patents, utility models, registered designs, design rights, domain names, in each case whether registered or unregistered (and including the benefit of all registrations and applications to register any of them), and all similar rights anywhere in the world, now or in the future.
"Saas Services" means the services described in Clause 2 (SaaS services).
"Software" means computer programs in machine-readable object code form to which access is to be provided to as part of the Saas Services via www.bugleon.com on a pay-per-use basis and which will be developed in accordance with the Delivery Plan and the Specification.
"Specification" means the features of the Software, as may be updated and amended from time to time.
"bugle Staff' means all persons employed by bugle, together with any permitted subcontractors and agents and their respective employees, subcontractors and agents.
"Target Service Levels" means the required service levels for the performance of the Saas Services, as detailed in Clause 3 (Service Level Agreement). “Term” means the term of this Agreement.
"Customer Data" means data processed at any time by or on behalf of the customer, its Affiliates and/or their customer's pursuant to the Agreement, including but not being limited to personal data or anonymized data or technical data.
"User Subscriptions" means the user subscriptions purchased by the customer which entitle its users to access and use the Saas Services and the Documentation in accordance with this Agreement.
"Working Day" means 9.00 am to 6.00 pm Monday to Friday, Lisbon and London time, excluding Portuguese and UK public and bank holidays.
Bugle will deliver the following Saas Services to the customer:
• Subscription of its video training and informal knowledge sharing platform, including the student area and the platform back-office.
• Standard customer support services during the Term in accordance with bugle's Support Services Policy in effect at the time that the Saas Services are provided.
This clause outlines the service levels to be provided in bugle delivery of Saas Services. It also provides service delivery parameters, against which the delivery of Saas will be evaluated.
bugle Saas Services Uptime commitment: bugle will provide access to the Saas Services Platform on a twenty-four hour, seven days a week (24X7) at a rate of 99.5% (bugle Saas Services Uptime Metric). A quarterly bugle Saas Service Uptime between 99.0% and 99.5% will be considered "Tolerable" rating, while not meeting the commitment goals. A quarterly bugle Saas Service Uptime below 99.0% will be considered "Unacceptable". Under such rating, the customer is entitled to terminate the agreement subject to clause 8.1.4 (“Termination for failure to achieve minimum Target Service Levels”).
bugle Saas Services Uptime Metric commences on the date of the date of the initial term. bugle Saas Services Uptime Metric shall be measured using New Relic Server Performance Reports or any other alternatively credible performance analysis software. On a quarterly basis, bugle Saas Services Uptime Metric will be measured using the measurable hours in the quarter (total time minus planned downtime, including maintenance, upgrades, etc.) as the denominator. The numerator is the denominator value minus the time of any outages in the quarter (duration of all outages combined) to give the percentage of available time.
Boundaries and Exclusions: bugle Saas Services Uptime Metric shall not apply to performance issues caused by the following:
• Overall Internet Congestion, slowdown, or unavailability.
• Unavailability of generic Internet Services (e.g. DNS Servers) due to virus or hacker attacks
• Force majeure events as described in the terms of this agreement
• Actions or inaction of the customer (unless undertaken at the express direction of bugle) or third parties beyond the control of bugle.
• A result of the customer equipment or third-party computer hardware, software, or network infrastructure not within the sole control of bugle.
• Scheduled bugle Saas Services Infrastructure Maintenance.
bugle will provide bugle Saas Services Uptime Metric Report ("Uptime Metric Report") to the customer upon request. If the customer does not agree with the Uptime Metric Report, written notice of the dispute must be provided to bugle within fifteen days of receipt of the Uptime Metric Report.
Additionally, bugle assures:
• A first customer response time of 12 hours to any feedback from the customer regarding platform bugs.
• The correction of any identified technical bug in 48 hours.
• Whenever the corrective procedures from bugle are expected to exceed 24 hours, bugle will notify the customer in written fashion about it including the estimated required correction time.
Fees: for all Services performed by bugle, the Customer will pay bugle the fees that are contemplated in www.bugleon.com/pricing.
Taxes: the Fees exclude value added tax, sales tax, use tax, service tax, all other duties and/or taxes or other similar charges imposed on bugle or the Customer by any tax authority (other than taxes imposed on bugle’s income) which shall be charged separately by bugle and pid by the Customer. All such charges, duties and/or taxes shall be identified in the invoice as a separate item.
Expenses: the Customer agrees to pay for reasonable out-of-pocket costs and expenses (including but not limited to travel, hotel and other business related expenses) incurred in performing the Services, provided that bugle has submitted supporting documentation of such expenses and these were pre-approved by Customer.
Invoices: payment terms for time and material engagements, bugle will invoice the Customer monthly in arrears for Services performed by bugle and expenses incurred. For annual price arrangements, bugle will invoice 100% of the Service before the Initial Term. Invoices are payable in euro within fifteen (15) calendar days from the invoice date. If the Customer fails to pay any sums when due bugle shall be entitled to interest on the amount due compounded daily at the rate of 1,50% per month calculated from date due and shall also be entitled to recover all costs including reasonable expenses, legal fees and cost of collection. Without prejudice to any other rights or remedies bugle may have, in the event the Customer fails to pay any undisputed amount within fourteen (14) calendar days of the due date for payment, bugle may suspend performance of its obligations under this Agreement without incurring any liability whatsoever until such payment is made.
Disputes of Invoices: in the event the Customer disputes any portion of an invoice, the Customer shall notify bugle of such disputed amount and the basis for the Customer’s dispute within ten (10) calendar days from the invoice date (failure of which shall result in the invoice being deemed accepted by the Customer), together with any appropriate information supporting the Customer’s position, and the undisputed portion shall be paid as provided herein. Without prejudice to any other rights or remedies bugle may have, in the event the Customer fails to pay any undisputed amount within fourteen (14) days of the due date for payment, bugle may suspend performance of its obligations under this Agreement without incurring any liability whatsoever until such payment is made.
5.1 bugle shall retain ownership of all Intellectual Property Rights residing in the Software and the Saas Service other than the Input IPR which shall vest in the customer.
5.2 Background IPR. As between the customer and bugle, each party shall retain ownership of all Intellectual Property Rights it owns or uses under licence as at the Initial Term ("Background IPR"). Nothing in this Agreement shall operate to transfer any Background IPR from one party to the other, and neither party shall acquire any rights in relation to Intellectual Property Rights used by the other under licence from a third party licensor.
5.3 Input IPR. The customer is exclusively responsible for any contents it makes available on or through the Saas Service ("Input IPR"), including without limitation opinions, comments and suggestions. The customer shall therefore not make available any illegal contents or contents the which use was not authorised. bugle is in no way responsible for the information, opinions or contents of any kind that are made available by the customer employees or by other users, nor for any information, product or services which may be associated or advertised on the Service. bugle cannot also be held responsible for the use the customer users make of the customer’s contents. bugle may remove, with no prior written notification to the individual employee, any content or material made available by the customer’s employees on or through the Service, including without limitation if they are illegal or when required by a competent entity. bugle may also require from the customer’s employees to delete any content that infringes or may infringe LOI or third parties' rights, or mandatory applicable law. You shall immediately remove any such content.
5.4 New IPR. Any Intellectual Property Rights developed by bugle in the course of providing the Saas Services ("New IPR") shall vest absolutely in bugle.
5.5 General know-how. This Clause shall not affect either party's rights to use know-how gained during performance of its obligations under this Agreement, provided that such use does not breach its confidentiality obligations under this Agreement or infringe the Intellectual Property Rights of the other party.
5.6 IPR indemnity. bugle agrees to defend the customer from and against any claim or action that the Software and/or the provision of the Development Services and/or the Saas Services infringe the Intellectual Property Rights of any third party (an "IPR Claim"). bugle shall fully indemnify and hold harmless the customer from and against any losses, damages, costs (including legal fees) and expenses incurred by or awarded against bugle, the customer and/or a any Affiliate as a result of or in connection with an IPR Claim, except where it relates to Input IPR. If the provision of the Saas Services infringes or, in bugle's reasonable opinion, is likely to infringe the Intellectual Property Rights of any third party, bugle may at its option and expense:
5.6.1 procure for the customer the right to continue using the Saas Services free from any liability for such infringement; or
5.6.2 modify the Saas Services so as to avoid the infringement but providing the customer with substantially the same functionality and performance at no additional cost.
The indemnity contained in this Clause shall remain in full force and effect following any termination of this Agreement.
6.1 Each party warrants and represents that:
6.1.1 it has the full capacity and authority, and all necessary licences, permits and consents, to enter into and perform this Agreement;
6.1.2 it will perform its obligations in compliance with all applicable laws, enactments, orders, regulation and similar instruments.
6.2 bugle further warrants and represents that:
6.2.1 the performance of its obligations under this Agreement will not infringe the Intellectual Property Rights of any third party and it has the full capacity and authority to grant all licences required of it under this Agreement;
6.2.2 it will deliver the Saas Services with reasonable care and skill, and in accordance with good industry practice;
6.2.3 the Software and the Saas Services shall comply in all respects with the Specification;
6.2.4 the Saas Services will perform in accordance with the Documentation and will be available in accordance with the Target Service Levels;
6.2.5 the Saas Services will not cause any material fault or malfunction in any systems of the customer;
6.2.6 bugle shall maintain such insurances with a reputable insurer such insurances as represent good market practice for a reputable provider of IT services to a company of a similar nature to the customer; and
6.2.7 bugle has established and implemented and will for so long as this Agreement remains in force maintain, a contingency plan for disaster recovery which aims to ensure continuity of the Saas Services.
6.2.8 bugle is General Data Protection Regulation (GDPR) and Data Protection Legislation compliant, and all data from the data subjects is processed according to these regulations and supervised by bugle data controller. See Security & Privacy for more detailed information.
7.1 Neither party limits its liability for death or personal injury caused by its negligence, or for fraud. Neither party limits its liability for breach of the clauses of Confidentiality, Data Protection or Intellectual Property Rights indemnity.
7.2 Subject to clause 7.1, the customer and bugle will not be liable to the other for any indirect, special or consequential loss or damage and the customer and bugle's liability for all other claims, losses or damages shall not exceed a sum equivalent to the Charges paid and payable or received and receivable by the customer and bugle under this Agreement.
8.1 This Agreement may be terminated in any of the following circumstances:
8.1.1 Termination for convenience: either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period.
8.1.2 Termination for material breach: either party may terminate this Agreement by written notice to the other if the other party is in material breach of this Agreement and either (a) the breach is not remediable or (b) the breach is capable of remedy but is not remedied within 30 days of the non-breaching party giving written notice that it requires it to be remedied. If this specific termination circumstance applies, bugle shall return to the customer a pro rata amount of the subscription fees paid by the customer to bugle for the period from signing of the Agreement until the date on which the customer serves notice under this clause in consideration of any "non-used" subscription time.
8.1.3 Termination for insolvency: either party may terminate this Agreement by written notice to the other if the other party becomes Insolvent. If this specific termination circumstance applies, bugle shall return to the customer a pro rata amount of the subscription fees paid by the customer to bugle for the period from signing of the Agreement until the date on which the customer serves notice under this clause in consideration of any "non-used" subscription time.
8.1.4 Termination for failure to achieve minimum Target Service Levels: the customer may terminate this Agreement by written notice to bugle and with immediate effect if bugle fails to achieve the Target Service Levels to such an extent as to exceed the termination threshold specified in Schedule 2 (Service Level Agreement). If this specific termination circumstance applies, bugle shall return to the customer a pro rata amount of the subscription fees paid by the customer to bugle for the period from signing of the Agreement until the date on which the customer serves notice under this clause in consideration of any "non-used" subscription time.
8.1.5 Termination for Force Majeure: if a Force Majeure Event continues for a period of 15 Working Days, the unaffected party may terminate the Agreement immediately by serving notice in writing to that effect, without prejudice to any of its other rights under this Agreement.
8.2 Any termination of this Agreement (howsoever occasioned) shall not affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination, nor shall it prejudice any right of either party which had arisen on or before the date of termination.
8.3 Upon receiving or giving notice of termination under this Agreement, bugle shall provide such assistance as required by the customer to enable it to transition the provision of the Saas Services provided by bugle either inhouse or to a third party. The scope and costs of these Saas Services shall be agreed by bugle and the customer in writing, acting reasonably.
8.4 bugle shall, at any time during the term of this Agreement, and for a period of up to 90 days following termination or expiry of this Agreement, upon request by the customer promptly (and in any event no later than 2 Working Days from the date of such request) provide the customer with a copy of the customer Data in such format or formats as the customer may reasonably request. After such 90 day period following termination or expiry of this Agreement bugle shall have no obligation to maintain or provide any customer Data and shall promptly thereafter delete all customer Data in its systems or otherwise in its possession or under its control, and certify in writing to the customer that it has done so.
9.1 Assignment. The Customer may not assign any rights or obligations under this Agreement without the prior written consent of bugle, such consent not to be unreasonably withheld or delayed. bugle may assign this Agreement to any affiliate, parent or subsidiary of bugle.
9.2 Amendment. This Agreement may be amended or modified only by written agreement of a duly authorized representative of both Parties Counterparts.
9.3 Waiver. No indulgence granted by one party to the other, and no failure by a party to insist upon strict performance of this Agreement, shall constitute a waiver of that party's rights or remedies or a waiver of any subsequent default.
9.4 Severance. The invalidity in whole or in part of any provision of this Agreement shall not affect the validity of the remainder of this Agreement or of the relevant provision.
9.5 Entire Agreement. This Agreement contains the entire and only agreement between the parties and supersedes previous discussions, negotiations, arrangements, understandings and agreements between the parties in respect of the subject matter hereof.
9.6 Law. This Agreement shall be subject to and construed and interpreted in accordance with Portuguese law and shall be subject to the exclusive jurisdiction of the Courts of Portugal.
9.7 Third Party Rights. A person who is not a party to this Agreement shall have no right to enforce any of its terms.