License Terms of Service
These Master Terms of Service including any Appendices, Statements of Work and Order Form(s) set out the basis upon which you (the "Customer") subscribe to and/or use the Services and together shall be defined as the "Agreement". This Agreement constitutes the entire agreement between the parties concerning the subject matter herein and supersedes any and all communications, representations, and arrangements whether written or oral concerning the subject matter hereof and Customer hereby acknowledges that no reliance is placed on any representation made but not referenced in this Agreement. No purchase order or other text which purports to modify or supplement the printed text of this Agreement shall add to or vary the terms of this Agreement. Any such purchase order shall be dealt with by Acuratio for invoicing purposes only. Reference to Acuratio means Acuratio Inc., a Delaware Corporation, with address 55 East 3rd Avenue, San Mateo, Ca 94401, United States unless otherwise stated in the Order Form.
Acuratio reserve the right to change or modify this Agreement in our sole discretion. Acceptance of such changes or modifications is constituted by either: (i) continued use of any part of the Service thirty (30) days after the modified terms have been posted to the Acuratio website or (ii) your indication of agreement to the updated terms, via click-through or otherwise.
1. Defined Terms
"Company": Refers to Acuratio, the provider of the software licenses.
"Customer": Refers to the entity purchasing the software licenses from the Company.
"Software": Refers to the cloud or on-premise deployed software provided by the Company.
"On-Premise": Refers to the deployment of the Software within the Customer's own infrastructure.
"License": Refers to the right to use the Software as granted by the Company under these terms and detailed in section 3.1.1 of this terms of service.
"Service(s)" means the Acuratio data analytics platform-as-a-service solution product and related services.
"Software Subscription" shall mean and include the following: (i) the delivery of the Software, (ii) the delivery of the respective Documentation, (iii) the grant of the License and (iv) the provision of Maintenance and Support Services.
"Software Setup Services" shall mean the installation, configuration, development, customization and integration services related to the Software as described in an Order Agreement.
"Subscription Period" shall mean the term of the Software Subscription, as set out the respective Order Agreement.
"Site" means the Acuratio website at www.acuratio.com
"Confidential Information" shall mean any information, and all information derived thereof, received from a disclosing Party under or in connection with this Master Agreement or an Order Agreement (i) that has been labelled as "confidential information" or similar by the disclosing Party or (ii) that should be regarded as confidential due to its nature or the circumstances of its disclosure. The following information shall not be regarded as Confidential Information: Information which (i) was independently developed by the receiving Party without aid, application or use of the Confidential Information, (ii) was disclosed by a third-party without breach of a confidentiality obligation, (iii) is or becomes generally available to the public through no fault or breach of the receiving Party, or (iv) the receiving Party can demonstrate to have it rightfully in its possession prior to disclosure without being bound by confidentiality obligations.
"Contractor" shall mean (i) Contractor Lead Company and/or (ii) any of its Affiliates which have entered into an Order Agreement with an entity of the Customer Lead Company.
"Subcontractor" shall mean any third-party person, corporation or other entity engaged by Contractor for the performance of the Contractual Services.
"Contractual Services" shall mean Software Subscription and Software Setup Services.
"Control" and any derivative terms means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or an entity, whether through the ownership of voting rights, the holding of shares, interests or other forms of equity participation, by contract or otherwise.
"Customer" shall mean any entity of the Customer Lead Company which has entered into an Order Agreement with Contractor Lead Company or any of its Affiliates.
"Documentation" shall mean all documentation such as user manuals, maintenance manuals, design documentation, design specifications or operation and installation manuals and other material, on any kind of media, relating to the Software describing, explaining or assisting in the use of the Software which can reasonably be expected to be provided with the Software according to industry standards.
"Maintenance and Support Services" shall mean the maintenance and support services described in the order agreement (Maintenance and Support Services).
"Monthly Average Remuneration" shall mean the monthly average of the Subscription Fee due under an Order Agreement within a contract year.
"Net Customer Spend" shall mean the net revenues which accrued under all Order Agreements of a specific Customer within a calendar year.
"Net Group Spend" shall mean the total net revenues which accrued under all Order Agreements within a calendar year.
"Order Agreement" shall mean an agreement for the provision of Contractual Services entered into under this Master Agreement by an entity of the Customer Lead Company and the Contractor Lead Company or any of its Affiliates on the basis of Order Agreement Template.
"Party" shall mean a legal entity that is bound by this Master Agreement or an Order Agreement, as the case may be.
"Release" shall mean the issuance of any patch, update, and/or upgrade by Acuratio.
"Response Time" shall mean the time in which a qualified employee of Acuratio responds to Customer after receipt of an Incident report and shall be measured on a monthly basis.
"Target Resolution Time" shall mean the time elapsed between the raise of an Incident by Customer with Acuratio until the Incident is resolved and shall be measured on a monthly basis.
"Working Days" means days 10am to 7pm CET which are neither Saturdays nor Sundays nor public holidays at the seat of the Customer.
2. Term and Termination
2.1 Commencement Date, Term
The Service shall commence on the Start Date set out in the Order Form and shall continue for the Minimum Term. Unless otherwise stated in the Order Form, it shall be automatically renewed for additional twelve (12) months (each a Renewal Term) subject to the terms and conditions of this Agreement.
2.2 Termination for Convenience
Either Party may terminate this Master Agreement for convenience upon not less than thirty (30) days prior written notice, however only upon expiry of an initial term of one year or renewal term.
2.3 Termination for Cause
Either Party shall have the right to terminate this Master Agreement for good cause according to statutory law.
2.4 Effects of Expiry of this Master Agreement
The expiry or termination of this Master Agreement shall not have any effect on the Order Agreement(s), if any, which shall remain in force. The terms and conditions of this Master Agreement shall continue to govern any such Order Agreement, until the termination of the relevant Order Agreement. The term and termination of an Order Agreement is set out therein.
3. Contractual Services
3.1 Software Subscription
Software Subscription includes the following Contractual Services: (i) the delivery of the Software, as agreed in the respective Order Agreement, (ii) the delivery of the respective Documentation, (iii) the grant of the License as set forth in this Section 3.1 and the respective Order Agreement and (iv) the provision of Maintenance and Support Services.
3.1.1 License Grant
Acuratio, upon conclusion of a corresponding Order Agreement, grants the Customer the worldwide, transferable (subject to 3.1.5), non-exclusive right to use the Software for its business purposes during the relevant Subscription Period ("License"). If not explicitly set out otherwise in an Order Agreement, the Software may be used and installed on any kind and amount of compatible hardware, including use in a virtualized environment. The License shall in particular include the right to load, install, configure, access, execute, display, copy (including for back-up or archival purposes) and store the Software, and to make the Software available for use (also via network, e.g., by providing application services) within the Customer Lead Company and to Other Beneficiaries.
3.1.2 License Model
Software Subscription is subject to the License terms as set out in section 3.1.1 and the further rights as stipulated in sections 3.1.3, 3.1.4, 3.1.5 and 3.1.6 (together "License Scope"). The Parties may agree on the application of the following License models in an Order Agreement, which modify and/or change the License Scope only to the extent explicitly described in the License model definitions below:
Acuratio Evaluation License: License only for evaluation purposes – The license is granted per installation or node for the duration of the evaluation period set out in Order Agreement.
Acuratio Enterprise Analytics: Annual license for private cohort generation – The license is granted per installation or node and for up to ten (10) users per node. Such users shall be defined by Customer. Customer may, at its sole discretion, replace users.
Acuratio Enterprise Federated Learning: Annual license for Federated Machine Learning – The license is granted per installation or node and for up to ten (10) users per node. Such users shall be defined by Customer. Customer may, at its sole discretion, replace users.
3.1.3 Other Beneficiaries
The Parties agree that the License is granted also to the benefit of any third-party using the Software solely for an ongoing business relationship with the Customer or its Affiliates; (jointly "Other Beneficiaries").
3.1.4 Outsourcing
The Parties agree that any third-party IT provider of Customer and/or its Affiliates may utilize the Software on behalf of the Customer and solely to the benefit of the Customer and/or its Affiliates, subject to the terms of this Master Agreement.
3.1.5 Divestures
In the event an entity or unit of the Customer Lead Company is sold or otherwise divested and ceases to be part of the Customer Lead Company ("Divested Entity"), Customer may accommodate an orderly transition of the Divested Entity for a period not to exceed twenty-four (24) months after the date of divesture (but in no event longer than the Subscription Period) and for such purpose the Divested Entity shall be deemed part of the Customer Lead Company during such time period.
3.1.6 Maintenance and Support Services
Acuratio shall maintain the operability of the Software during the Subscription Period and provide Maintenance and Support services.
3.2 Software Setup Services
The Customer and Acuratio may agree in an Order Agreement upon Software Setup Services, which shall be subject to the terms and conditions set out in the General Terms for Software Setup.
3.3 Warranty
The Software shall conform with the functionality description set out in the Software Product Description and the Documentation within the Subscription Period.
4. Remuneration
4.1 Remuneration
The Customer and the Contractor will agree upon the remuneration in the Order Agreement. The prices agreed are net.
4.2 Invoices; Payment Term
4.2.1 Invoices Content
Invoices shall be issued in Euro or Dollars and submitted to the Customer's location specified in the Order Agreement. In addition to the information required by law, the invoice must include the order number; the statutory VAT shall be stated separately if applicable.
4.2.2 Payment Term
Unless otherwise agreed in an Order Agreement, the remuneration will be charged on a yearly basis in advance and shall be due for payment thirty (30) days after Customer's receipt of the orderly issued invoice.
4.3 Default in Payment
4.3.1 Requirements for default
Customer shall only be in default (i) upon expiry of the payment term and (ii) upon receipt of a default notice by which Contractor has demanded payment of the respective amount in writing.
4.3.2 Default Interest
In the event of default in payment, the Customer shall owe interest at a rate that is five (5) percentage points above the base interest rate as set out by the European Central Bank or zero (0) whichever is higher.
4.4 Taxes
The Parties shall pay their respective taxes, levies expenses or other charges in accordance with all applicable laws.
4.4.1 VAT
The amounts to be charged in accordance with the service provision under this Agreement are stated exclusive of any Value Added Tax (VAT). Where any VAT becomes due, this VAT is subject to the applicable VAT law and is payable or has to be declared by the service provider or the recipient of the service, depending on the supply of services and the respective place of supply.
4.4.2 Withholding Tax
The remuneration might be subject to deductions of withholding tax in accordance with the tax laws of the country of the Customer. Pursuant to the double tax convention between home country of Contractor and the home country of the Customer, Contractor may be entitled to claim exemption from the making of such withholding tax deduction.
a) In the event that Customer is obliged by law to deduct withholding tax at the applicable statutory rate and pay such amount to the tax authorities of home country of Customer on behalf to and for the account of Contractor from any payment under this Agreement, Customer shall be entitled to make such deduction from the remuneration and make such account to the tax authorities of the home country of Customer, unless and if possible Contractor has obtained a certificate of exemption in accordance with the tax laws of the home country of Customer and has provided it to the Customer before the dates on which the relevant remuneration becomes payable.
b) In the event that such certificate of exemption is provided to Customer after the relevant tax has been paid to the tax authorities in the home country of the Customer, the Contractor shall, if possible, obtain and the Customer shall co-operate to obtain a certificate of exemption required by the tax authorities to relieve Customer from the withholding obligation for future payments (if applicable) and/or to refund any taxes already withheld by Customer on Contractor's behalf to enable Contractor to reclaim such tax.
4.4.3 General rule
Generally, in respect of taxation arising out of this Agreement, the Parties shall give each other all reasonable assistance to mitigate and/or to reclaim such taxation.
5. Confidentiality
5.1 Use of Confidential Information
All Confidential Information shall be used only for the purpose of exercising any rights or complying with any obligations under this Master Agreement or any Order Agreement. Customer and Contractor shall for an unlimited period of time protect such Confidential Information from unauthorized use or disclosure (intentional, inadvertent or otherwise) and, in any event, shall exercise at least the same level of care to avoid any such unauthorized use or disclosure as it uses to protect its own information of a like nature.
5.2 Permitted Disclosure
Notwithstanding the foregoing, each receiving party may disclose Confidential Information to third parties with the prior written consent of the disclosing Party. Each receiving Party will be free to disclose Confidential Information without the consent of the disclosing Party on a need-to-know basis:
a) to the extent as required by mandatory law and/or regulatory authorities and provided the receiving Party has if legally permitted informed the disclosing Party immediately in writing about such obligation,
b) to its personnel and the personnel of its approved Subcontractors, as the case may be, and to such professional advisors that have a secrecy obligation under applicable laws or are placed upon an explicit confidentiality obligation.
In addition to the above, Customer shall be entitled to disclose Confidential Information on a need-to-know basis within the Customer Lead Company.
5.3 Return and Destruction
If this Master Agreement and/or an Order Agreement ends for whatever reason, the receiving party of each tangible item of Confidential Information, including documents, contracts, records or properties, will return such item and any copies thereof to the disclosing Party and/or, in the disclosing Party's discretion, destroy it and any copies thereof and provide a corresponding certificate to the disclosing Party, except to the extent that retention of any Confidential Information is required by applicable laws or expressly permitted under this Master Agreement.
6. Data Protection
6.1 Compliance with Statutory Law
The Contractor shall collect, process, and use personal data solely for the purpose of fulfilling this Master Agreement and/or the Order Agreement(s) and only in accordance with all statutory laws and regulations (in particular data protection laws) applicable to Customer and/or Contractor.
6.2 Commissioned Data Processing
If the Contractor is supposed to collect, process or use any personal data by commission of the Customer, this shall require the conclusion of a separate written agreement covering the commissioned processing of personal data, in the currently applicable version. Any transfer of personal data outside the European Economic Area shall require the prior written approval of the Customer. Furthermore, in such case, Contractor will (and will ensure that any Subcontractors shall) enter into the appropriate contractual arrangements with Customer for the transfer of personal data outside the European Economic Area and the processing of such data, in each case in the form as prescribed and/or approved, where applicable, by the competent supervisory authority. Such contractual arrangements may include, at the direction of Customer, the EU model clauses for the transfer of personal data to third countries.
7. IT Security Regulations
7.1 IT Security Requirements
The Contractor shall perform all Contractual Services in compliance with the security requirements.
7.2 Prohibition of Unauthorized Access
Contractor warrants that unless authorized in writing by Customer or unless otherwise agreed in the relevant Order Agreement, the Software provided to Customer shall:
- contain no code and/or services, catering for functionality not authorized by Customer, e.g., malware, backdoor, unauthorized remote access to or from Customer's network;
- not replicate, transmit, or activate itself without control of a person (or Customer created script) operating computing equipment on which it resides and
- not alter, damage, or erase any data or computer programs without control of a person (or Customer created script) operating the computing equipment on which it resides.
7.3 Work on Customer's Premises
To the extent that, in order to perform the Contractual Services, any activity of employees of the Contractor or its Subcontractors at the premises of the Customer is required, the Contractor will notify the Customer thereof in due time before the start of such work, by stating in writing (email is sufficient) the persons, the affected premises and the required duration.
7.4 Compliance with Customer Policies
The Contractor undertakes to comply with the accident prevention and occupational health and safety provisions that apply on the relevant business premises of the Customer; in particular, it shall ensure, by way of corresponding instructions or contractual agreements, that its employees and Subcontractors comply with such provisions.
7.5 Access rights
If employees of Contractor or its Subcontractors receive access cards for non-Customer employees and/or keys that provide them with access to the Customer's premises for the duration of their activity, the Contractor shall ensure that such access cards and/or keys are only used for their intended purpose and are protected from access by unauthorized third parties. The Contractor shall ensure that they are immediately returned to the Customer once the Contractual Services have been completed; any loss must be reported to the Customer without undue delay.
8. Subcontractors
8.1 Use of Subcontractors
Any use of Subcontractors for the performance of the Contractual Services by the Contractor shall require Customer's prior written approval. The Contractor shall be liable for any act or omission of any of its Subcontractor to the same extent as for fault on his own part. Customer may revoke its approval of any Subcontractor, in particular if Customer reasonably believes Subcontractor's performance to be deficient, and in such cases, Contractor will discontinue use of the Subcontractor's products and/or services and provide substitutes therefore. Customer will allow Contractor a reasonable time (not to exceed thirty (30) days or the applicable notice period in the relevant subcontract, whichever is greater) for termination and replacement in relation to the Contractual Services.
8.2 Confidentiality Obligations of Subcontractors
The Contractor shall impose on its Subcontractors confidentiality obligations at least as strict as applicable to the Contractor towards the Customer.
9. Contractor's Personnel
9.1 Directives to Employees
Regardless of the place of performance, the Contractor's employees are subject exclusively, to the decisional power of the Contractor as their sole and only employer. Customer has no authority to supervise, discipline, direct, or instruct any of the Contractor's personnel.
9.2 Qualification and Reliability of Personnel
The Contractor confirms and continuously ensures that its personnel is fully reliable and sufficiently qualified to perform the Contractual Services. Upon Customer's request, Contractor shall describe its verification process, provide any supporting documentation as well as a written confirmation of reliability and qualification to Customer without undue delay. Contractor is obliged upon request of Customer or a competent supervisory authority to evidence reliability and qualification of the personnel who has been assigned overall responsibility for the performance of the Contractual Services.
10. Enterprise Service Level Agreement – Enterprise Plan Only
Contractor shall submit to each Customer a detailed monthly report of the service levels set out in the Maintenance and Support Services at a level of detail sufficient to verify compliance with the service levels.
The provision of the Maintenance and Support Services hereunder shall commence upon delivery of the Software to the Customer.
10.2 General Maintenance
The Software shall be made compatible by Contractor with all relevant future upgrades to third-party products which are required to use the Software; including but not limited to operating systems and databases. Such compatibility shall be achieved within a reasonable period of time after the availability date of such future versions of third-party products.
Contractor shall make any Release available to Customer as soon as it is generally offered by Contractor. The provision of any Releases shall be done in the same way as the Software was originally made available to Customer. Releases shall not lead to a limitation or modification of functionalities of the Software, which may lead to negative effects on the work processes of the Customer and/or restrictions on the usability of generated application data.
10.3 Customer Support
Customer support shall include the availability of a hotline service, the correction of Incidents and the answering of questions of Customer's designated IT staff as described hereinafter.
10.3.1 Hotline Service
From 10am to 7pm CET on Working Days, Contractor shall make a hotline support available for Customer's designated IT staff. Such hotline support shall enable Customer to contact Contractor concerning any questions regarding the Software or to raise an Incident via telephone, e-mail, or web forms on Contractor's customer support website, if available.
10.3.2 Incident Resolution
The Contractor shall be obliged to maintain the operability of the Software during the respective Subscription Period. Incidents which cannot be solved by Customer can be reported to Contractor by Customer's designated IT staff via the hotline support.
If an Incident is reported to Contractor, Contractor shall acknowledge the receipt of the report within the Response Time and resolve the Incident within the Target Resolution Time. Contractor shall communicate an identification number for each Incident, which shall be referred to by both Parties to identify the reported Incident.
10.3.3 Service Levels for Incident Resolution
Incidents will be classified into the following priority levels ("Priority Levels"). Customer has the final authority to determine the Priority Level within its reasonable discretion.
- Urgent – severe business impact; e.g., Software is unusable resulting in total disruption of work, affects a large regional or global group of users, or one or more business critical applications or business processes are disabled;
- High – high business impact; e.g., major feature/function failure in Software, operations are severely restricted, affects a large group of users, and/or a business-critical application or business process;
- Normal – Low or medium business impact affecting only non-business critical applications or business processes; e.g., minor feature/function failure in Software, or affects only a single user, who cannot work at all, and/or a small group of users, who cannot work with a specific application or business process;
- Low – Very limited business impact affecting only non-business critical applications or business processes; e.g., minor problem with Software, or affects only a single user, who cannot use a single application or business process;
Contractor shall resolve all Incidents according to the schedule below ("Service Levels"):
| Priority Level | Response Time | Target Resolution Time |
|---|---|---|
| Urgent | 60 minutes | 24 hours |
| High | 4 business hours | 24 hours |
| Normal | 8 business hours | 7 business days |
| Low | 24 business hours | 14 business days |
10.3.4 Reports
Contractor shall notify Customer in writing whenever the status of the Incident correction changes and when the respective ticket is closed.
Contractor shall deliver an Incident resolution report not later than one week after the Incident was resolved. Such report shall include the time of commencement of the Incident removal, the reasons for the Incident identified and the time of final resolution of the Incident.
11. Miscellaneous
11.1 Applicable Law
This Master Agreement and the Order Agreement(s) are subject to Spanish law.
11.2 Place of Jurisdiction
The exclusive place of jurisdiction for all disputes arising from or in connection with this Master Agreement and/or the Order Agreement(s) shall be Madrid, Spain. The Parties agree to submit to the jurisdiction of the Courts and Tribunals of Madrid, expressly renouncing any other jurisdiction to which they might have a right, for any legal action which may arise from this Agreement.
11.3 Language
This Master Agreement shall be executed in English and only the English version shall be binding, even though a translation into some other languages may be prepared.
11.4 Required Form
The conclusion of an Order Agreement as well as any changes or amendments of provisions of this Master Agreement or any Order Agreement shall require written form in order to be valid. This also applies to any waiver of this written-form requirement itself.
11.5 Notices
All notices to be given, or other communications to be made, under this Master Agreement or an Order Agreement shall be valid only if made in text form.
11.6 Severability Clause
If a provision of this Master Agreement should be or become invalid or be inadvertently incomplete, the validity of the other provisions of this Master Agreement shall not be affected thereby. The invalid or incomplete provision shall be replaced or supplemented by a legally valid arrangement which is consistent with the intentions of the Parties to this Master Agreement or what would have been the intention of the relevant Parties according to the goals of this Master Agreement if they had recognized the invalidity or incompleteness, as the case may be.
11.7 Entire Agreement
This Master Agreement embodies and sets forth the entire agreement and understanding of the Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Master Agreement.
11.8 Set-off / Right to retain
The Contractor shall be entitled to a right to set-off or a right to retain only with respect to claims that are undisputed by the Customer or have been determined finally and legally binding by a competent court.
11.9 Non-Assignment
No Party may assign or transfer all or any part of its right and obligations under this Master Agreement or an Order Agreement to a third-party without the prior written consent of the other Party, provided that Customer Lead Company or Customer may assign its rights and obligations under this Master Agreement or under an Order Agreement to any other entity of the Customer Lead Company without the Contractor Lead Company's or Contractor's consent.