REPUTATION.COM FOR ENTERPRISE
STANDARD SERVICES AGREEMENT – GERMANY
This Service Agreement and the accompanying Service Proposal govern the provision of services (the “Services”) by Reputation.com (UK) Ltd. (the “Company”) to its customer (the “Client” or “you”). Collectively, the Service Agreement and Service Proposal shall be referred to as the “Agreement”.
1. ADDITIONAL DETAILS OF PRODUCTS AND SERVICES.
1.1 Service-Level Agreement. The Services will be available at least 99% of the time. Should Services not be available, and should Client notify Company of such, Company will extend Client’s subscription term by the period of reported outage at no cost.
1.2 Collaborative Actions. Client understands that certain reputation management activities require the timely and reasonably diligent cooperation of the Client. To the extent that Company’s ability to complete certain activities or obtain favorable results is attributable to a lack of timely or reasonably diligent cooperation from Client, in such case, a failure to complete activities or obtain results shall not constitute a breach of this Agreement.
2. RIGHTS AND USE RESTRICTIONS
2.1 Proprietary Rights. All intellectual property rights in and to the Services and any user documentation related thereto are owned by Reputation.com, including but not limited to patent, copyright, trade secret, and trademark law, as well as other applicable laws and international treaty provisions.
2.2 Use Restrictions. The Client may not (a) damage, disable, or impair the Services (or the network(s) connected thereto; (b) modify, reroute, create derivative works of, derive the source code of, reverse engineer, disassemble or tamper with Services, or attempt to do any of the foregoing; (c) violate any local, state, federal or other applicable consumer privacy regulations or applicable law or violate the rights of any third party (including, without limitation, rights of privacy or proprietary rights); (d) disable or circumvent any security features of the Company’s products or Services; or e) cause or permit any third party to do any of the foregoing.
2.3 Reservation of Rights. All rights not expressly granted to Client in this Agreement are reserved to Company. No additional rights whatsoever (including, without limitation, any implied licenses) are granted to Client by implication, estoppel or otherwise. Company does not, by virtue of this Agreement, acquire any ownership interest or rights in the Services, any Company trademarks or service marks, or any other Company technology, software (including third party technology and software) or intellectual property.
3. FEES AND PAYMENT FOR SERVICES
3.1 Fees. Client agrees to pay all fees specified in the Agreement.
3.2 Taxes, Late Fees and Penalties. Client shall be responsible for paying any applicable taxes related to this Agreement, including, but not limited to, VAT or sales or service taxes.
4. WARRANTIES AND DISCLAIMER
4.1 Company. The Company represents and warrants that: (a) the Services will be provided in a professional and workmanlike manner; and (b) the Services do not infringe upon the intellectual property rights of third parties.
4.2 Client. Client represents and warrants that: (a) all information Client provides to Company is accurate and truthful; (b) Client is authorized to provide Company with any customer information that Client provides in connection with the Services); and (c) Company’s possession and/or use of the customer information under this Agreement will not violate any contract, statute, or regulation.
5. LIMITATION OF LIABILITY
5.1 Limitation on Types of Damages. Except for claims arising out of a data breach, the Company shall not be liable (on whatever legal grounds) for damages that may not reasonably be foreseen, assuming a normal use of the services. Furthermore, Company’s liability shall be excluded for damages resulting out of a loss of data if their recovery is not possible or impeded due to a failure to perform appropriate data back-up procedures.
5.2 Limitation on Amount of Damages. The Company’s maximum liability arising out of or in any way connected to this Agreement shall not exceed the fees paid by Client to us pursuant to the Agreement that is the subject of the claim during the twelve (12) months immediately preceding the claim.
5.3 Exclusions. The foregoing limitations of liability shall not apply in cases of willful misconduct or gross negligence or personal injury or under the German Product Liability Act.
6. TERM AND TERMINATION
6.1 Term of Engagement. The initial term of each engagement shall begin on the date that this Agreement is signed by both parties and shall continue for the period specified in the Service Proposal.
6.2 Termination for Breach. Either party may terminate this Agreement at any time upon written notice to the other party if the other party is in material or persistent breach of this Agreement and either that breach is incapable of remedy, or the breaching party fails to remedy the material breach within thirty (30) days after receiving written notice identifying the material breach and requiring such breach to be remedied.
6.3 Effect of Termination. Upon termination: (a) all rights granted to Client under this Agreement, including Client’s right to use the Services, shall cease; (b) the Company shall stop performing all Services; (c) Client shall immediately pay any fees due under this Agreement thorough the date of termination and (d) Company shall, upon receipt of a written request, destroy or return all Client and/or Confidential Information. Sections 5 through 10 shall survive any termination or expiration of this Agreement.
7.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential 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 as confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall include, without limitation, the techniques, methods, or strategies Company uses in connection with performing the Services as well as Client Information that is designated as confidential. However, Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
7.2 Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the security and confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Agreement to any third party without the other party’s prior written consent other than to (i) its legal counsel and accountants; (ii) to potential investors, lenders, purchasers of either party’s business, or underwriters in connection with their due diligence in future financings, acquisitions mergers or public offerings of either party; or (iii) as required by law.
8. FORUM AND GOVERNING LAW
This Agreement shall be governed by and construed under the laws of Germany. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by the courts in Frankfurt, Germany.
9. GENERAL PROVISIONS
9.1 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or indemnification). All notices shall be sent to the addresses set forth on the applicable Agreement, which may be updated from time to time upon written notice to the other party.
9.2 External Forces. The Company shall be excused from performance hereunder to the extent that its performance is prevented, delayed or obstructed by causes beyond Company’s reasonable control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, and/or natural disasters.
9.3 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).
9.4 Entire Agreement. This Agreement, including all exhibits and addenda hereto and the accepted Agreement(s), constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. This Agreement may be executed in counterparts and electronic or .pdf signature shall be binding.
10. PERSONAL DATA
10.2 Data Processing. To the extent the Company collects, processes, transfers or uses personal data of Client`s employees and/or Client`s customers in the context of performance of the Services to Client, such collection, processing, transfer or use of personal data takes place on behalf of Client and on the basis of a separate data processing agreement.
10.3 Data Protection. Where either Party receives any personal data (as defined by the Data Protection Act 1998) (“the Act”) from an end customer or from the other Party, it shall ensure that it fully complies with the Act in connection with its handling of such personal data.
10.4 Data Hosting. Effective 1/1/2018. The parties agree that the reputation.com reputation management SaaS platform used to perform the services under this agreement (the “platform”) shall be physically hosted in Germany and that all data provided by the client, including any personal data (collectively “client data”), shall be physically stored on servers within Germany. Reputation.com will not move or replicate the client data outside of Germany, except as legally required and/or as necessary to maintain and support the services provided under this agreement.