These Planisware Orchestra Services Terms and Conditions govern PlaniswareOrchestra SaaS Service Orders and the related Professional Services Statement of Work entered into between Planisware USA, Inc. (“Planisware”) and the Customer listed therein (“You”).

 

1. DEFINITIONS

 

“Affiliate” means any entity or person that controls, is controlled by or is under common control with, any of the parties of this Agreement.

“Control” means the possession, directly or indirectly, of at least 50% of the share capital or voting rights or of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.

“Agreement” means these Planisware Orchestra Services Terms and Conditions together with any SaaS Service Order and any related Professional Services Statement of Work entered into between You and Planisware.

“Customer Data” means any data, information or material uploaded, provided or submitted by You to Planisware in the course of using the Service and hosted by Planisware as part of the Services.

“End-User” means an individual authorized to access and use the Planisware Orchestra SaaS Service in compliance with the Agreement.

“End-User Materials” means user and training manuals delivered to you as part of the Services.

“Intellectual Property Rights” means, all rights, title, and Interest in all copyright rights, patents, trademark, trade secrets, knowhow, and other intellectual property rights.

“Service(s)” means the service(s) described in a SaaS Service Order and any related Professional Services Statement of Work entered into between You and Planisware, including written, audio and visual information, documentation, materials, reports, programs and graphics contained in or made available to You in the course of the Services (excluding however Customer Data contained therein).

 

2. SERVICES

 

2.1. Planisware or its Affiliates shall deliver the Services to You as provided in a signed SaaS Service Order and related Professional Services Statement of Work. Planisware may also subcontract certain Professional Services to subcontractors. For Services provided by Planisware’s Affiliates and subcontractors, Planisware shall remain responsible to You and Planisware shall ensure that its Affiliates and subcontractors are subject to confidentiality terms with respect to Customer Data that are no less stringent than the confidentiality terms set forth herein.

2.2. Planisware shall implement security procedures consistent with current industry standards to protect Customer Data from unauthorized access, such as ISO and SOC standards. Neither Planisware nor its Affiliates shall be held responsible or liable for third parties’ unauthorized access to Customer Data through the exploitation of security gaps, weaknesses, or flaws generally unknown to the industry. You shall be solely responsible for acquiring and maintaining all technology, systems and procedures for maintaining the security your Internet connections as you connect to the Service and for maintaining the security of End-User passwords and login credentials. Planisware will report to You any security vulnerability or any unauthorized access to Customer Data promptly upon becoming aware of such and will remedy any breach of security that permitted any unauthorized access.

 

3. LICENSES

 

3.1. Subject to the terms and conditions of the Agreement, Planisware grants to You and your Affiliates, exercisable by and through End Users, a limited, nonexclusive, royalty-free, revocable (for breach), non-transferable, and non-sublicensable, right and license to access the Service only for your internal business purposes and for the term and number of End- Users specified in the SaaS Service Order. Deliverables created by Planisware in connection with the performance of a Professional Services Work Order may be used by Customer solely for internal business purposes.

3.2. The Services may provide access to open source software components made available by third parties (“Open-Source Software”). The Open-Source Software is not subject to the terms and conditions of this Agreement. Instead, each item of the Open-Source Software is licensed under its applicable license terms which accompany such Open-Source Software. The terms and conditions of the applicable license for the Open-Source Software are provided with the Service. Nothing in this Agreement limits Customer’s rights under, nor grants Customer rights that supersede the terms and conditions of any applicable license terms for the Open- Source Software. Any fees charged by Planisware in connection with the Services are not in consideration for the licenses granted to the Open-Source Software. Planisware makes no warranty with respect to any Open-Source Software.

3.3. The End-User Materials are provided solely to support your authorized use of the Service under this Agreement. You may copy and distribute the End-User Materials to End-Users but only in support of their authorized use of the Service, provided You reproduce and include Planisware’s copyright notice and proprietary legend on each such copy. This license specifically prohibits distribution – in any format – of the End-User Materials to persons outside of your company. You may not post or upload the End-User Materials to any publicly accessible websites, virtual cloud storage areas or the like.

3.4.You shall not, and shall not permit End-Users or any other person to:
a) attempt to gain unauthorized access to the Services, including by impersonating an End-User, using an End User’s log-in credentials without authorization, bypassing or breaching any security device or other means of protection of the Services or accessing or using the Services other than by an End-User using their assigned user name and log-in;
b) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, including via time-sharing, service bureau;
c) modify or make derivative works based upon the Service (for clarification, you are allowed to make derivative works of Customer Data obtained via the Services);
d) create Internet "links", “frames” or “mirroring” to or of the Service (for clarification, you are allowed to make screen captures of the Service, project the Service via a videoconference or share reports generated via the Services for your internal business purposes);
e) reverse engineer, disassemble, decompile, decode, adapt or access the Services to (i) build a competitive product or service, or (ii) build a product using similar features, functions, user interface or graphics of the Services;
f) access or use the Services beyond the scope of the license granted by the Agreement;
g) use the Services to send spam or otherwise duplicative or unsolicited messages;
h) send or store via the Services infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights;
i) send or store via the Services material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
j) knowingly interfere with or disrupt the integrity or performance of the Services.
You are responsible to ensure that your employees and End-Users adhere to the restrictions set forth above.

3.5. You shall notify Planisware immediately of any unauthorized use of any End-User login credentials or any other known or suspected breach of security concerning the Service. You shall immediately report to Planisware any unauthorized access to, use, copying, or distribution of the Services that You become aware of, or reasonably suspect, and you shall promptly take measures to prevent the furtherance of any such activity.

3.6. Prior to accessing the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, you shall notify Planisware and we will agree on a testing methodology so as not to disrupt the operation of the Service.

3.7. You grant to Planisware and its Affiliates, a nonexclusive, royalty-free, irrevocable, non-transferable, and non- sublicensable, right and license to use any suggestions, ideas, enhancement requests, feedback, recommendations, specifications or other information provided by You or any of your employees and End-Users relating to the Service and End-User Materials.

 

4. COMPLIANCE WITH LAWS

 

Each party shall, and shall ensure that their respective employees, contractors, End Users, and Affiliates comply with all applicable laws and regulations in providing or using the Services, including laws with respect to the protection of personal data, export controls, and transmission of information. You are fully, solely, and exclusively responsible for the lawfulness and appropriateness of Customer Data uploaded by End-Users to the Service and the adequacy of intellectual property and other third party rights for use and distribution of Customer Data via the Services.

 

5. OWNERSHIP RIGHTS

 

5.1. Planisware and its licensors are the exclusive and sole owner of all Intellectual Property Rights in and to the Services, and any modification or configuration of the Services, End-User Materials, and other deliverables provided in the performance of professional services (such as the format, user interface and graphics of reports, programs, and other materials, but excluding any Customer Data included therein). Planisware will also own all data derived from your use of the Services and may use and disclose such data (i) to provide the Services, (ii) as aggregate Services statistics, which will not identify You or your End-Users, and (iii) to improve the Service or to develop future services.

5.2. You and your licensors are exclusive and sole owner of all Intellectual Property Rights in and to the Customer Data.

 

6. FEES

 

6.1. In consideration for the Services, You agree to pay the fees set forth in the SaaS Service Order(s) and any related Professional Services Work Order, as well as any travel expenses as applicable under a Professional Services Work Order. SaaS subscription fees for all End-User access rights as provided in the SaaS Service Order must be paid in full upon the start of the subscription and are not cancellable or refundable (subject to Section 7.3), whether or not such End-User access rights are actively used. Unless otherwise specified the SaaS Service Order(s) and any related Professional Services Work Order, all invoiced amounts are due and payable within thirty (30) days of your receipt of the invoice.

6.2. If any Fees are not paid when due, Planisware may, within 30 days of sending a delinquency notice, at its option: (i) charge interest at a rate of 1.5% per month or, if less, the highest rate allowed by applicable law, and charge all expenses incurred by Planisware in its collection efforts, (ii) terminate this Agreement for material breach as provided in Section 7 below; and/ or (iii) suspend your access to the Services until payment is made in full, subject to, at Planisware’s discretion, your payment of a reactivation fee.

6.3. All fees payable under the Agreement do not include taxes. If Planisware is required to pay sales, use, property, value- added, or taxes based on licenses granted or Services performed, or on your use of the Service, then You shall be responsible for the payment, in full, of such taxes and Planisware shall bill You accordingly.

 

7. TERM AND TERMINATION

 

7.1. This Agreement shall be in effect (i) during any initial or renewal Subscription Term as provided in a SaaS Service Order, and (ii) until all Services have been performed under a Professional Services Work Order, unless the parties have terminated such Professional Services Work Order in accordance with its terms.

7.2. Any SaaS Service Order may be terminated by either party upon a material breach by the other party of the terms of this Agreement, which breach has not been cured within thirty (30) days after the breaching party has received written notice of such alleged breach.

7.3. Notwithstanding Section 6 of this Agreement, in the event a SaaS Service Order is terminated by You due to an uncured material breach of Planisware, you shall be entitled to a prorated refund of unused monthly fees. Such refund shall be paid within 30 days of the date of termination.

7.4. In the event this Agreement is terminated for any reason other than an uncured material breach by Planisware, You will owe Planisware all outstanding Fees concerning the Service for the remainder of the Term identified in any outstanding SaaS Service Order. Upon termination, all Fees under a Professional Services Work Order for services performed up until the date of such termination shall become immediately due and payable in full. Any Fees or Professional Services Fees not paid when due become subject to the late payment provision described in Section 6.1, above.

7.5. 7.4 Sections 5, 8 through 11, and any payment obligation under this Agreement shall survive termination of this Agreement and remain in full force and effect.

 

8. CONFIDENTIALITY

 

8.1. “Confidential Information” means all nonpublic information disclosed between the parties, directly or indirectly, orally, electronically, visually or in a document or other tangible form, which is designated as “Confidential,” “Proprietary,” or some similar designation, or, which, by its nature, should reasonably be deemed confidential by the recipient. Customer Data shall be deemed your Confidential Information. Fees and payment terms under this Agreement are confidential information of Planisware. Future or contemplated services and products of Planisware shall be Confidential Information of Planisware. Notwithstanding the foregoing, information shall not be Confidential Information to the extent that it (a) is already known to the recipient and not subject to any confidentiality restrictions at the time it is obtained, (b) is or becomes publicly known through no fault of the recipient, (c) is rightfully received by the recipient from a third party with the legal right to disclose the information and without restrictions on further disclosure, (d) is required to be released by the recipient in compliance with a court order or other directive of law, or (e) is independently developed by the recipient. Each party will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the other party’s Confidential Information. Without limiting the foregoing, each party will take at least those measures that it takes to protect its own most highly confidential information. Neither party will make any copies of the other party’s Confidential Information unless approved in writing by the other party.

8.2. Each Party will reproduce the other Party’s proprietary rights notices on any approved copies. Each party will not disclose the other party’s Confidential Information to third parties, except to their respective employees, contractors, attorneys, accountants and auditors, on a need to know basis, and if required by law so long as the recipient gives the disclosing party prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protecting the information from public disclosure.

8.3. Any use or disclosure of Confidential Information, including disclosure of any Confidential Information in violation of the terms of this Agreement may cause loss and/or damage to the disclosing party for which an adequate remedy at law may not exist, and the disclosing party may seek temporary or permanent injunctive relief from a court of competent jurisdiction for such violation.

 

LIMITED WARRANTY

 

9.1. Planisware represents, warrants and covenants to You that (i) Planisware will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, and (ii) Planisware will devote adequate resources to meet its obligations under this Agreement.

9.2. EXCEPT FOR THE WARRANTY IN THIS SECTION, THE SERVICE ARE PROVIDED “AS IS”. NEITHER PLANISWARE NOR ITS AFFILIATES MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHER, PLANISWARE DOES NOT WARRANT THE SERVICES WILL BE ERROR-FREE OR THAT THE USE OF THE SAAS SERVICE WILL BE UNINTERRUPTED. ALL SERVICES ARE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NEITHER PLANISWARE NOR ITS AFFILIATES ARE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE THAT MAY RESULT FROM SUCH LIMITATIONS AND PROBLEMS.

9.3. FURTHER, PLANISWARE DOES NOT WARRANT NOR PROMISE THAT THE PROFESSIONAL SERVICES, INCLUDING ANY CONSULTING AND/OR CONFIGURATION SERVICES WILL BE ERROR FREE. PLANISWARE DOES NOT INDEMNIFY YOU IN ANY MANNER FOR ANY DAMAGES, LOSSES OR THIRD-PARTY CLAIMS, INCLUDING INTELLECTUAL PROPERTY CLAIMS, IN RELATION TO THE PROFESSIONAL SERVICES.

 

10. INDEMNITY

 

10.1. Planisware will defend and hold you and your Affiliates harmless from any third party claim that the Services infringe any US patent, copyright, trademark, trade secret or any other third party intellectual property rights. You will defend and hold harmless Planisware and its Affiliates from any third party claim that the Customer Data infringe any US patent, copyright, trademark, trade secret or any other third party intellectual property rights.

10.2. Notwithstanding the foregoing, Planisware has no duties and no obligation to indemnify You to the extent that a third- party claim is based on 1) the combination, operation, or use of the Service with any hardware, system, software, network or other materials or service not provided by Planisware or 2) the modification of the Services done by You or any other third-party without Planisware’s prior written approval or 3) your End-Users using the Services in breach of this Agreement. To the extent that any claim is based on the exclusions in 1) through 3) above, You agree to defend and hold Planisware harmless against any such claim and fully indemnify Planisware against all related damages and losses.

10.3. If an infringement claim concerns the Services, Planisware may, at its option, (a) secure for You the right to continue to use the Services, (b) modify or replace the Services so they are non-infringing, or, (c) if Planisware determines that neither of the foregoing options are feasible, terminate this Agreement, in which case Planisware shall refund to You any and all subscription fees that You paid in advance for the Service and provide, at your request and free of charge, the Customer Data in a database format. This section states your sole and entire remedy with respect to any claim of Infringement regarding the Services.

10.4. The above indemnification obligations of the parties are subject to (i) the indemnifying party notifying the indemnified party in writing of the alleged infringement claim immediately upon receipt of such claim; (ii) the indemnified party fully cooperating with the indemnifying party by providing all documents and information reasonably required to defend the claim; and (iii) the indemnifying party having control over the defense and settlement of the claim, provided that the settlement of a claim regarding Customer Data shall be subject to your written approval, which shall not be unreasonably withheld, and the settlement of a claim regarding the Services shall be subject to Planisware’s written approval, which shall not be unreasonably withheld.

 

11. LIMITATION OF LIABILITY

 

11.1. IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH USING OR PROVIDING THE SERVICES EXCEED THE AMOUNTS PAID BY AND/OR DUE UNDER THE APPLICABLE SAAS ORDER FORM OR PROFESSIONAL SERVICES STATEMENT OF WORK RELATING TO THE CLAIM FOR THE LAST 12 MONTHS PRECEDING THE CLAIM.

11.2. IN NO EVENT SHALL EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.3. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.

 

12. MISCELLANEOUS

 

12.1. Notices. All notices or other communications required to be given under this Agreement shall be in writing and delivered either personally, by electronic mail, or by U.S. mail, certified, return receipt requested, postage prepaid, addressed to the contact person as set forth in the SaaS Purchase Order or as subsequently reasonably requested by the receiving party. Notices delivered personally or by electronic mail shall be effective upon delivery, and notices delivered by mail shall be deemed received three (3) business days after deposit in the mail.

12.2. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California as it applies to a contract made and performed in such state. Venue shall be in the County of San Francisco, California.

12.3. Entire Agreement; Modifications and Waivers. This Agreement constitutes the full and entire understanding and agreement between the Parties with regard to the subjects hereof. No term of this Agreement may be modified except by a writing signed by authorized representatives of both parties. It is agreed that no use of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement.

12.4. Severability. In the event that any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms.

12.5. Force Majeure. Neither party shall be responsible for any failure to perform due to unforeseen circumstances or to causes beyond the parties’ reasonable control, including but not limited to acts of God, invasion, war, riot or other civil unrest embargoes or blockades, acts of civil or military authorities, fire, floods, earthquake or explosion, accidents, strikes, labor stoppages or slowdowns or other industrial disturbances or shortages of transportation, facilities, fuel, energy, labor, or materials; passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. In the event of any such delay, either party may defer any delivery dates for a period equal to the time of such delay. Notwithstanding the foregoing, if either party is in default under this Section for more than forty-five (45) days, the non-defaulting party may terminate this Agreement.

12.6. Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof shall be settled by binding arbitration in California, administered by the American Arbitration Association in accordance with its then current Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator may award monetary damages, punitive damages, injunctive relief, rescission, restitution, costs and attorneys’ fees. The arbitration award shall be final and binding regardless of whether one of the parties fails or refuses to participate in the arbitration. The arbitrator shall not have the power to amend this Agreement in any respect. Notwithstanding the foregoing, the parties agree that this Section does not apply to the breach of provisions pertaining to proprietary rights, and that either party may petition a court of law for injunctive relief and such other rights and remedies as it may have at law or equity against such breaches.

12.7. Attorneys’ Fees. In the event of any dispute with respect to this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and other costs and expenses incurred in resolving such dispute.