(A) Flintfox TPM for Dynamics 365 for Operations
(Product descriptions and user counts are defined in Appendix I.)
Parties to this Agreement
This Software Subscription Terms agreement is made between
Flintfox International Limited (“Flintfox”)
These terms apply to the software specified in Appendix I attached hereto and any updates or supplements thereto
Capitalized terms not defined herein have the meaning set forth in the Flintfox Global Terms & Conditions (“FGT&C’s”).
Scope of Subscription
Subscribed Service. The Flintfox Application Services are subscribed for under this FSSA. The Flintfox Application Services are not being sold to Client. This FSSA only gives Client some rights to the Flintfox Application Services on a non-exclusive, non-transferable basis solely for the fixed term specified herein (subject to continued compliance with the terms hereof) based upon the number of instances, users and Flintfox Products set forth on Appendix 1. Flintfox reserves all other rights. Except as otherwise expressly set forth in this FSSA, Client’s rights to the Flintfox Application Services will automatically terminate upon expiration or termination of this Agreement.
Intellectual Property Exclusion. Rights to access the Flintfox Application Services and use the server Software do not include or grant Client any right to implement Flintfox patents or other Flintfox intellectual property in software or devices that access the server.
Service Use Restrictions. Client may only use the Flintfox Application Services for Client’s internal business purposes. Unless applicable law or a separate written contract with Flintfox gives Client more rights despite this limitation, Client may use the Flintfox Products only as expressly permitted in this FSSA. In doing so, Client must comply with any technical limitations in the Software that only allow Client to use it in certain ways. Additionally, Client may not
reverse engineer, decompile or disassemble the Software;
make more copies of the Software than specified in this agreement;
publish the Software for others to copy;
rent, lease or lend the Software; or
use the Software for commercial software hosting services or operating a service bureau.
Multiplexing. Hardware or software that Customer uses to pool connections; reroute information; reduce the number of devices or users that directly access or use the Flintfox Applications Services (or related software); or reduce the number of Operating System Environments, devices or users the Online Service directly manages (sometimes referred to as “multiplexing” or “pooling”) does not reduce the number of licenses (including subscription licenses) of any type that Customer needs.
License Grant for Templates. Client may copy and use templates provided with the Flintfox Application Services and identified for such use in documents and projects that Client creates. Client may distribute those documents and projects non-commercially.
Modification. Client may modify the Flintfox Products only as necessary to use it if Client received it in source code form or Client has licensed tools from Flintfox that allow Client to modify the object code form. Client agrees that Flintfox is not responsible for any problems that result from modifications to the Flintfox Products made by Client or a third party or that are caused by third party hardware or software.
Additional Functionality. Flintfox may provide additional functionality for the Flintfox Products. Other license and subscription terms and fees may apply.
Server Software. Client may use the Flintfox Application Services as defined by Client’s subscribed Dynamics 365 for Operations instances with Microsoft in accord with Client’s Microsoft Online Services. The Flintfox Application Services subscription is matched with the default Microsoft Dynamics 365 for Operations Production instance included in Client’s Microsoft Online Services, and every additional Microsoft Dynamics 365 for Operations sandbox instance associated with the same Microsoft Online Services subscription account. Client will provide Flintfox annual copies of its Microsoft Online Services subscription agreement to ensure compliance.
Users. Client may use the number of named users of the Flintfox Application Services as defined in Appendix 1. Named users means that each user requires a separate subscription license and such subscription licenses may not be shared. The User subscription count required for these Flintfox Products must be equivalent to the Microsoft Online Services subscription licenses held with Microsoft. Client will provide Flintfox annual copies of Microsoft license agreements to ensure compliance.
Products. Client may use the Flintfox Products for which Client has obtained a subscription license hereto for Client’s Production Environment per Appendix 1. Client must obtain a separate subscription license for each Production Environment.
Installation. Client may need to install and use certain Software (as specified on Appendix 1) in order to use the Flintfox Application Services, in which case Client may install such Software on the number of devices on which Client may use Flintfox Application Services. Client’s right to use such Software begins when the Flintfox Application Services contemplated herein is activated and ends when Client’s right to use the Flintfox Application Services ends. Client must uninstall the Software when Client’s right to use it ends. Either Microsoft or Flintfox may disable such Software at that time.
Term & Termination
Initial Term. The initial term of this FSSA will expire twelve full calendar months after the initial invoice date.
Renewal. Either party may terminate this FSSA earlier as described below. This FSSA will automatically renew for additional twelve month periods (each a “renewal term”) based on the then-current pricing at the time of renewal. This FSSA will not renew if either party notifies the other party that it would like to terminate this FSSA and such party provides the other party with such notice at least 90 days before the initial term or the applicable renewal term expires.
Early Termination. Either party may voluntarily terminate this FSSA with 180 days prior written notice to the other party. Either party may terminate this FSSA if the other party materially breaches any material term or condition of this FSSA. The party demanding termination of this FSSA for breach must give the other party 30 days prior written notice thereof. The other party must be given an opportunity to cure the breach during this 30-day period before a termination for breach will become effective, except where the breach, by its nature is incapable of being cured within such 30 days. Notwithstanding the foregoing, Flintfox may immediately terminate this FSSA if and Flintfox may also immediately terminate this FSSA if:
Client makes any assignment for the benefit of creditors, file a petition in bankruptcy, or are adjudged bankrupt or become insolvent or are placed in the hands of a receiver; or
Client fails to pay any amounts owing to Flintfox as agreed herein or under any other written agreement between Flintfox and Client.
Obligations on termination or expiration. If Client voluntarily terminates this FSSA as permitted above, Client agrees to pay Flintfox a termination fee equal to the greater of (a) the amount of all fees owed by Client for the remainder of the current term or (b) 6 months of fees. Except as provided in this section, when this MSSA terminates or expires, Client’s rights under this MSSA will automatically terminate and Client must return to Flintfox any copies of any documentation that Client received under this MSSA. Alternatively, at Flintfox’s sole discretion, Flintfox may instruct Client to destroy and certify to the destruction of those copies of documentation.
Transition Assistance. Subject to Client’s continued compliance with this FSSA, including without limitation payment of all applicable fees, Flintfox shall exercise commercially reasonable efforts to provide Client access to and use of the Online Services for up to one hundred eighty (180) days when this FSSA terminates or expires so that Client have the ability to migrate to a new solution. Flintfox’s obligation to provide transition assistance service to Client shall be limited to commercially reasonable efforts, shall not exceed one hundred eighty (180) days unless expressly agree in writing, and shall be subject to Client’s agreement to the then current FGT&C’s.
Pricing and Payment
Client shall be responsible for and shall pay to Flintfox the fees as further described in Appendix 1, subject to the terms and conditions contained in this MSSA and the FGT&C’s.
Because the Flintfox Application Services utilize Microsoft Online Services, Client’s rights hereunder are subject to and conditioned upon Client’s continued compliance with all of its obligations with respect to the Microsoft Online Services for which it has subscribed.
Client must obtain Flintfox’s prior written approval to disclose to a third party the results of any benchmark test of the Flintfox Products.
Client may utilize multiple copies of the Flintfox Products for development, backup, training and testing purposes, so long as such copies are not used in any Client Production Environment. Client’s backup copies must be hosted by Microsoft on Client’s behalf.
Client may run multiple passive and/or active fail-over or clustered instances of Client’s System Database for the purposes of redundancy, or scalability. The System Database instances must all be copies of the same data.
Any person that has valid access to Client computers or internal networks may copy and use the documentation for Client’s internal, reference purposes.
Maintenance is included in the fees for the Software Subscription associated with this SSA and entitles the Client to use new version(s) of the Software and all fixes, patches and updates for the Software.
Incidents for which Maintenance Requests are initiated shall be classified in accordance with Severity Level designations set for in the Severity Level-Response-Resolution Schedule below upon the mutual agreement of Flintfox and Client, provided, however, if no such agreement can be obtained, by Flintfox.
Severity Level Classification:
Severity 1 – System Down
Severity 1 is used when there is an error or issue that causes the Online Service to fail to function and/or crash the system on which the Online Service operates
Initial Response Time:
2 Hours from initial response to both technical and non-technical and executive management
Work begins immediately and continues until a Workaround is produced
As soon as reasonably practicable
Customer Portal; Phone
Severity Level Classification:
Severity 2 - Production Impacted
Severity 2 is used when there is an error or issue that causes a major function in the maintained software to fail to operate in a material manner but does not render the system on which the maintained software is installed inoperable and there is no workaround available.
Initial Response Time:
4 Hours from initial response to both technical and non-technical management
Work begins immediately and continues until a Workaround is produced
As soon as reasonably practicable
Customer Portal; e-mail
Severity Level Classification:
Severity 3 - Production Impaired
Severity 3 is used when the system does not operate as documented, there is a known workaround, which produces an inconvenient situation
Initial Response Time:
One Business Day
8 Hours from initial response to technical management
Prior to or upon the next scheduled update.
Customer Portal; e-mail
Severity Level Classification:
Severity 4 - Cosmetic
Severity 4 is the classification used when there is an error which is minor or cosmetic in nature and does not result in reduced performance
Initial Response Time:
Three business days
Prior to or upon the next scheduled update.
Customer Portal; e-mail
Severity Level Classification:
Severity 5 – Feature Request
Severity 5 is the classification used when there is an informational question or feature request.
Initial Response Time:
Seven business days
A feature request may, at Flintfox’s sole election, be added to its core product and become available upon the next scheduled update, or implemented pursuant to mutually agreed Work Order executed pursuant to the MPSA.
Customer Portal; e-mail
Limited Warranty. If Client follows the instructions, the Flintfox Application Services will perform substantially as described in the Flintfox materials that Client receives in or with the Flintfox Application Services.
Term of Warranty; Warranty Recipient; Length of Any Implied Warranties. The limited warranty covers the Flintfox Application Services for ninety (90) days after activation. If Client receives supplements, updates, or replacement Software during this period, they will be covered for the remainder of the warranty or thirty (30) days, whichever is longer. To the extent permitted by law, any implied warranties, guarantees or conditions last only during the term of the limited warranty. Some jurisdictions do not allow limitations on how long an implied warranty, guarantee or condition lasts, so these limitations may not apply to Client.
Exclusions from Warranty. This warranty does not cover problems caused by Client’s acts (or failures to act), the acts of others, or events beyond Flintfox’s reasonable control.
Remedy for Breach of Warranty. If the Flintfox Application Services do not conform to the limited warranty set forth in Section 11(a) above, Flintfox will repair or replace the Online Services at no charge. If Flintfox cannot repair or replace it, Flintfox will refund the amount shown on Client’s most recent invoice for the Flintfox Application Services. Flintfox will also repair or replace supplements, updates and replacement software at no charge. If Flintfox cannot repair or replace them, it will refund the amount Client paid for them, if any. Client must uninstall the Software and return any media and other associated materials to Flintfox with proof of purchase to obtain a refund. These are Client’s only remedies for breach of the limited warranty.
Consumer Rights Not Affected. You may have additional consumer rights under Client’s local laws, which this agreement cannot change. Nonetheless, you represent to Flintfox that you are an operating business and not a consumer.
No Other Warranties. The limited warranty set forth in Section 11(a) above is the only warranty from Flintfox. Flintfox gives no other express warranties, guarantees or conditions. Where allowed by Client’s local laws, Flintfox excludes implied warranties of merchantability, fitness for a particular purpose and non-infringement. If Client’s local laws give Client any implied warranties, guarantees or conditions, despite this exclusion, Client’s remedies are described in the Remedy for Breach of Warranty clause above, to the extent permitted by Client’s local laws.
Limitation on and Exclusion of Damages for Breach of Warranty. The limited warranty set forth in Section 11(a) above gives Client specific legal rights, and Client may also have other rights which vary from state to state or country to country to the extent that parties may not limit such rights as contemplated herein.
Limitation of Liability
The aggregate liability of Flintfox for all claims by Client under the Base Service Agreement is limited to direct damages up to the amount paid hereunder during the 12 months before the cause of action arose; provided, that in no event will a party’s aggregate liability for any Flintfox Application Service exceed the amount paid for that Flintfox Application Service during the term hereof.
Flintfox hereby acknowledges and recognizes that Client would be severely disadvantaged in the event that Flintfox files for bankruptcy, is adjudged insolvent, or otherwise ceases to function as a viable going concern (“Bankruptcy Event”). To ensure that Client is not impaired by a Bankruptcy Event, and at the discretion of the Client within ten (10) days of signing of this agreement, the following provision can be made under this agreement, at the Client’s request:
i.Flintfox ceases doing business and its business is not continued by another entity who has agreed to assume Flintfox’s obligations.
ii Flintfox files for, or becomes a party to any involuntary bankruptcy, and such involuntary proceeding is not dismissed within forty-five (45) calendar days after filing.
iii. Flintfox fails or ceases to provide maintenance services for the Flintfox Products subscribed to by Client under this SSA and such failure is not cured within sixty (60) days after written notice thereof from Client to Flintfox
In the event of the release of source code to Client, Client shall have the right to use, copy, modify, maintain and enhance the Flintfox Products subscribed to by Client and related programs, materials and source code for the internal use of only the Client and its Affiliates.
The appointment of the Escrow Agent is at the specific request of the Client and all costs related to the appointment and e maintenance of Escrow Materials will be met by the Client
Flintfox Global Terms and Conditions
The FGT&C’s are incorporated by reference in this Agreement as if fully restated herein. Client acknowledges receipt of a copy of the FGT&C’s.
IN WITNESS WHEREOF, authorized representatives of the parties have signed this Agreement as of the Effective Date.
Flintfox International Limited
Software Subscription Agreement Appendix 1 – Flintfox Products Subscribed
Flintfox TPM for Dynamics 365 Operations
Enterprise User Count
Team Member Count
TPM for Dynamics 365 for Operations
Based upon Microsoft Dynamics® 365 for Operations user counts
COMPRISED OF: Delete Yes or No as Required
Flintfox TPM for Dynamics 365 for Operations (Delete as required)
Advanced Pricing Sell Side
Full price model functionality, including Price Lists and Contracts. Promotion functionality for all Off Invoice related events including Free Goods, Breaks. Integration is to Selling side of AX including Quotes, Sales Orders, Invoicing, Customers and Items for sale, Payment Receipt, GL.
Full Promotion and Rebate Management Sell Side
Full promotion rebate, fee and commission functionality including MDF/Lumpsums, Accruals, Manual and Automated Payments, Deductions and Claims. Requires Advanced Pricing for full functionality. Integration is to Selling side of AX including Quotes, Sales Orders, Invoicing, Customers and Items for sale, Payment Receipt, GL.
Advanced Pricing Buy Side
Full price model functionality, including Price Lists and Contracts. Promotion functionality for all Off Invoice related events including Free Goods, Breaks. Integration is to Buy side of AX including , Purchase Orders, Vendor Invoices, Items purchased and Payments, GL.
Full Promotion and Rebate Management Buy Side Trade
Full promotion rebate, fee and commission functionality including MDF/Lumpsums, Accruals, Manual and Automated Payments, Deductions and Claims. Requires Advanced Pricing for full functionality. Integration is to Buy side of AX including , Purchase Orders, Vendor Invoices, Items purchased and Payments, GL.
INVESTMENT DETAIL: Delete Functionality as required and Complete Fee amounts
TPM for Dynamics 365 for Operations
Monthly Subscription Fee – Including Maintenance
Total payable upon execution of this Agreement
All amounts stated above are in Currency
Client Microsoft Account Number: __________________________
Subscription Holder Full Company Name: _____________________________________________________
Client Initials _____________ Flintfox Initials ________
Flintfox Global Terms & Conditions
The provisions set forth in these FGT&C’s have been incorporated into one or more agreements (a “Base Service Agreement”) by and between Flintfox and Client. Notwithstanding the existence of separate and independent obligations under each Base Service Agreement with regard to the FGT&C’s, any party claiming damages as a result of any breach of any FGT&C set forth herein shall not be entitled to duplicative recovery under any two or more Base Service Agreements.
To the extent that any Capitalized term is defined within both these FGT&C’s and the Base Service Agreement, the meaning of such term set forth in the Base Service Agreement shall be limited to the use of such term in the Base Service Agreement and the meaning of such term set forth in these FGT&C’s shall be limited to the use of such term in these FGT&C’s.
“Affiliates” means (i) for Client, any legal entity that Client owns, which owns Client, or which is under common ownership with Client; (ii) for Flintfox, any legal entity that Flintfox owns, which owns Flintfox, or which is under common ownership with Flintfox. For purposes hereof, owns or ownership means a fifty percent or more ownership interest in any particular entity or voting control of such particular entity.
“Change Order” means the form template developed by Flintfox used to document changes to a Work Order, MSSA, FSSA or Support Agreement as completed and agreed to in writing by the parties hereto or thereto, as applicable. A copy of the Change Order template is set forth on Appendix 1 hereto.
“Client” or “you” or “your” means the legal entity other than Flintfox or its Affiliate that has agreed to the Base Service Agreement.
“Day” means an eight (8) hour calendar day unless otherwise specified or agreed. Where working day is stated this shall mean a day in a work week where Services are being performed, namely Monday to Friday excluding statutory holidays.
“Deliverables” mean the result(s) that Flintfox will create or achieve for Client through the Professional Services it provides pursuant to a Work Order. Each Work Order shall specify the Deliverables.
“Escrow Agent” means the party identified under this agreement who is required to hold Escrow Materials on behalf of the Client.
“Escrow Materials” means a copy of Flintfox Product source code and documentation that is deposited with an Escrow Agent. The Escrow Materials are held on behalf of the Client under the provisions of this agreement.
“Estimate” means Flintfox’s best estimate of the charges and expenses that Flintfox will charge Client to perform the Professional Services specified in a Work Order.
“FGT&C’s” means these Flintfox Global Terms & Conditions.
“Flintfox Application Services” means the Microsoft hosted, Flintfox branded online services subscribed to by Client under an FSSA and set forth on Appendix 1 thereto that are built on top of and combined with certain Microsoft Online Services.
“Flintfox Product” means any Flintfox Application Service (including any Flintfox Software).
“Flintfox Software” means Flintfox or third party software provided for installation on any Client device as part of Client’s Subscription or to use with the Flintfox Application Service to enable certain functionality. Flintfox Software does not include Microsoft or any third party branded software that is the subject of any separate Microsoft Online Services.
“Flintfox Support Team” means the Flintfox personnel tasked with providing the Support Services contemplated under an FSA.
“FSA” means a Flintfox Support Agreement including all appendices, addendums and schedules thereto.
“FSSA” means a Flintfox Software Subscription Agreement including all appendices, addendums and schedules thereto.
“Go Live Date” means the date that the Client commences using a particular Online Service for which Client has entered into one or more separate FSSA’s or MSSA’s with Flintfox in a production setting (which had been in the process of being configured, customized, implemented or operating in a limited test mode) so that its intended users can access such services.
“Implemented Solution” is the completed set of business processes, software application use, Online Services, trained resources, and documentation that was deployed as part of a set of requirements agreed between the Client and Flintfox at the outset of an implementation, and consequently accepted, including any authorized variations. Notwithstanding the completed requirements which created the Implemented Solution, the Implemented Solution is likely to be the subject of continuous change and variation by way of business practice, resource training, software enhancement or customization. At the time of making any request for change by way of Support Request the Client acknowledges that the status of the Implemented Solution shall be as of the most recent documented Support Request closed with Flintfox prior to the Support Request in question.
“Initial Investigation” means the initial investigation undertaken to confirm the results of the reported incident specified in a Service Request by testing the behavior of the Implemented Solution.
“Initial Response” is the first contact made from Flintfox to the nominated representative of the Client. This will include a communication to the Client of a Ticket Number and any findings of queries relating to an initial investigation into the Ticket.
“Instance” means an image of software that is created by executing the software’s setup or install procedure or by duplicating such an image.
“Intellectual Property Rights” means all intellectual property rights or proprietary rights, including copyright rights (including rights in audiovisual works), moral rights, trademark rights (including logos, slogans, domain names, trademark applications, trade names, and service marks registered or otherwise), patent rights (including patent applications and disclosures), know-how, inventions, proprietary computer programs and software, rights of priority and trade secret rights, enforceable in any country or jurisdiction in the world.
“Maintenance” for Flintfox Application Services entitles Client to receive enhancements by way of version releases, periodic service packs, and authorized software fixes during the term of the relevant FSSA.
“Microsoft” means Microsoft Corporation
“Microsoft Cloud Agreement” means that certain Microsoft Cloud Agreement attached to a MSSA as Appendix 2 thereto.
“Microsoft Online Services” means any of the Microsoft-hosted online services subscribed to by Client under an MSSA and set forth on Appendix 1 thereto.
“Microsoft Online Service Terms” means that certain Microsoft Online Service Terms attached to a MSSA as Appendix 3 thereto.
“Microsoft Product” means any Microsoft Online Service (including any Microsoft Software).
“Microsoft SLA” means that certain Microsoft Service Level Agreement for Microsoft Online Services attached hereto as Appendix 4.
“Microsoft Software” means Microsoft or third party software provided for installation on any Client device as part of Client’s Subscription or to use with the Microsoft Online Service to enable certain functionality. Microsoft Software does not include Flintfox branded software that is the subject of any separate Flintfox Software Subscription Agreement.
“Microsoft Terms and Conditions” means the MSSA scheduled Microsoft Cloud Agreement, Microsoft Online Service Terms Microsoft SLA and such other terms and conditions, in each case, incorporated therein by reference or as otherwise made prominently available by Microsoft.
“MPSA” means a Master Professional Services Agreement and all Work Orders and Change Orders executed pursuant to the terms hereof.
“MSSA” means a Microsoft Software Subscription Agreement including all appendices, addendums and schedules hereto.
“Online Services” means any of (i) Microsoft Online Services for which Client has subscribed under a MSSA and (ii) Flintfox Application Services for which Client has subscribed under a FSSA.
“Operating System Environment” means all or part of an operating system Instance, or all or part of a virtual (or otherwise emulated) operating system Instance, that enables separate machine identity (primary computer name or similar unique identifier) or separate administrative rights, and Instances of applications, if any, configured to run on all or part of that operating system Instance. There are two types of Operating System Environments, physical and virtual. A physical hardware system can have one physical Operating System Environment and/or one or more virtual Operating System Environments. The operating system Instance used to run hardware virtualization software or to provide hardware virtualization services is considered part of the physical Operating System Environment.
“Production Environment” means the Flintfox Application Services that access Client’s System database which stores live/master data.
“Professional Services” means the full range of professional services that Flintfox may offer to Client as contemplated in any given Work Order. The Professional Services that Flintfox offers will vary from Project to Project and task to task. Each Work Order shall specify the type of Professional Services that Flintfox has agreed upon with Client. Professional Services do not include the provision of Online Services or Support Services.
“Project” means the Project specified in a Work Order.
“Rate Card” means the current Flintfox list or project roles and their current rates attached to an MPSA as Schedule 4 thereto. These rates are subject to change.
“Reseller” means Flintfox in its capacity as a Microsoft authorized reseller of Microsoft software licenses and Microsoft Online Services.
“Services” means the full range of Professional Services, Online Services, and Support Services that Flintfox may offer to Client. The Services that Flintfox offers will vary. Each Work Order, Software Subscription Agreement or Support Agreement shall specify the type of Services that Flintfox has agreed upon with Client.
“Software Subscription Agreement” means the form of FSSA or MSSA that Flintfox agrees to when Client requires a subscription to Online Services for a defined term as set forth in the applicable agreement. The Software Subscription Agreement sets out all of the relevant details concerning the designated Online Services subscription.
“Subscription” means an enrollment for Online Services under the applicable FSSA or MSSA for the term set forth therein.
“Support Agreement” means the form of FSA that Flintfox agrees to when Client requires a support agreement with Flintfox. The Support Agreement sets out all of the relevant details concerns the support offering and any Support Services related to the support agreement.
“Support Request” means the event details entered on a form provided by Flintfox, as for set forth on Appendix A to an FSA, that Client will provide to Flintfox outlining the nature and details of the incident being reported and where appropriate the action taken and the expected result. The request will have a unique identification (Ticket Number) allocated.
“Support Services” means the full range of support services contemplated in a Support Agreement with Flintfox. Based on support history and call volumes, Flintfox reserves the right to ensure Client is implementing Flintfox’s recommended actions in order facilitate ongoing success for the Online Services. If necessary, Flintfox may require additional training for client for a fee or potentially decline support for repeated, similar requests where action by Client to resolve such incidents have not been implemented.
“System database” means the underlying repository that stores Client’s business data.
“Taxes” means any federal, state, provincial or local taxes, fees, charges, surcharges, or other similar fees or charges arising as a result of or in connection with the transactions contemplated under any Work Order, Software Subscription Agreement, or Support Agreement executed by and between Flintfox and Client and include, but are not limited to, sales and use taxes, value added, gross receipts taxes, utility user’s fees, municipal occupation and license taxes, excise taxes, business and occupations taxes, 911 taxes, franchise fees, universal service fund fees or taxes, regulatory cost recovery and other surcharges, taxes imposed or based on or with respect to or measured by any net or gross income or receipts (other than taxes based upon Flintfox’s net income and any gross receipts taxes imposed in lieu of taxes on the income or profits of Flintfox), franchise taxes, stamp taxes, taxes on doing business, duties, tariffs, levies, withholding taxes, and any taxes that arise on the distribution or provision of products or services by Client to its Affiliates or customers.
“Ticket” means the mechanism used by Flintfox to track the detection, reporting, and resolution of the subject of a given Support Request raised by Client.
“Ticket Number” means a unique Ticket number (reference) that is allocated to any Support Request raised by the Client with Flintfox. The applicable Ticket Number is to be used in all subsequent communications regarding the Ticket.
“Work Order” means the form that Flintfox agrees to when the Client requires Services for a specific Project. The Work Order sets out all relevant details concerning the Project such as scope, milestones, the Professional Services related to the Project, the charges and the acceptance criteria. The terms for “Professional Services” provided under a Work Order shall be governed by the Master Professional Services Agreement by and between Flintfox and Client. The Work Order sets out all relevant details concerning the task to be completed, the charges and the sign off by authorized Client representative. The form of Work Order is attached as Schedule 1 to each MPSA.
Transactional. All amounts Client must pay Flintfox under a Base Service Agreement do not include any Taxes. Client must pay Taxes imposed on or with respect to its activities in connection with the Base Service Agreement, if any, and Flintfox will have no responsibility for the payments. Client must pay or reimburse Flintfox for all Taxes which are permitted to be collected by Flintfox under applicable law. Client may provide Flintfox with a valid exemption certificate in which case Flintfox will not charge the Taxes covered by such certificate, and further Flintfox will be under no obligation to apply credits for any periods for which Client had not timely submitted a valid exemption certificate. If Client is located in a jurisdiction that utilizes the VAT numbers for tax identification purpose, it will provide Flintfox with its VAT number together with its address details.
Income. If income taxes are required to be withheld by any government on payments to Flintfox, Client may deduct such taxes from the amount owed to Flintfox and pay them to the appropriate taxing authority; provided however, that Client promptly secures and delivers an official receipt for those withholdings and other documents reasonably requested by Flintfox to claim a foreign tax credit or refund. Client will ensure that any taxes withheld are minimized to the extent possible under applicable law. Client remains obligated to pay Flintfox for the amount of tax withheld until Client provides to Flintfox the official receipt and other documents reasonably requested.
Withholding. The withholding taxes referred to in this section apply to withholding taxes required by the taxing authorities on payments to Flintfox only and do not include any withholding taxes suffered by Client for payments made to Client by its Customers. Those withholding taxes will be Client’s financial responsibility.
Payment Due. Payment for Services is due thirty (30) days following the date of the invoice, except with respect to Invoices issued pursuant to a Work Order which shall be due within fifteen (15) days following the date of invoice.
Invoices. Invoices shall be issued on a monthly basis, unless otherwise agreed.
Suspension of Services. If Client does not pay Flintfox invoices by the due date, Flintfox may, upon five days’ notice in writing to Client, suspend the Services. Such suspension of Services will not affect Flintfox right to other remedies available to Flintfox. In the event that payments due remain outstanding for more than thirty (30) days from the due date for payment, then Flintfox shall be entitled to suspend and or terminate (at Flintfox’s election) the Base Service Agreement by written notice to the Client, and in the case of such termination or suspension, no refunds of any sum previously paid by the Client to Flintfox will be owing to Client. Such termination shall be without prejudice to all and any of the Flintfox’s other rights pursuant to the applicable Base Service Agreement, or at general law, in respect of the Client’s failure to make payment on due date.
Dispute of Invoice. If Client disputes any invoice, Client must notify Flintfox in writing within three days of receipt of the invoice. Flintfox shall endeavor to resolve the dispute promptly with Client. Until resolution of the dispute, Client may withhold payment of the disputed amount, but Client shall pay Flintfox the balance of the invoice not in dispute. If Flintfox and Client are unable to resolve the disputed invoice, Flintfox and Client both agree to follow the procedure under Dispute Resolution in this MPSA.
Offsets. The procedure set forth in the preceding paragraph and under Section __ regarding Dispute Resolution must be used in the event of any dispute regarding an Invoice, and the unilateral imposition by Client of offsets are not permitted. Client must pay all invoices in full without set-off or deduction of any kind.
Default & Consequences of Default. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month.
Undertaking. Flintfox and Client both agree to keep confidential all non-public information on each other’s data and records. Flintfox and Client both also agree to keep confidential anything else that is learned about each other’s business while any Services are being performed. Such information includes details on business, properties, clients, finances and accounts. Each party (the “disclosing party”) may from time to time disclose to the other party (the “receiving party”) certain information regarding the business of the disclosing party and its suppliers, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“confidential information”). Any information that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary by the disclosing party will be considered confidential information of the disclosing party.
Protection of Confidential Information. The receiving party will not use any confidential information of the disclosing party for any purpose not expressly permitted by the Base Service Agreement, and will disclose the confidential information of the disclosing party only to the employees or contractors of the receiving party who have a need to know such confidential information for purposes of the Base Service Agreement and who are under a duty of confidentiality no less restrictive than the receiving party’s duty hereunder. The receiving party will protect the disclosing party’s confidential information from unauthorized use, access, or disclosure in the same manner as the receiving party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
Exceptions. The receiving party’s obligations with respect to any confidential information of the disclosing party will terminate if such information (a) was already known to the receiving party at the time of disclosure by the Disclosing Party; (b) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, or use of, the disclosing party’s confidential information. In addition, the receiving party will be allowed to disclose confidential information of the disclosing party to the extent that such disclosure is (i) approved in writing by the disclosing party, (ii) necessary for the receiving party to enforce its rights under the Base Service Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the receiving party notifies the disclosing party of such required disclosure promptly and in writing and cooperates with the disclosing party, at the disclosing party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
Return of Confidential Information. The receiving party will return to the disclosing party or destroy all confidential information of the disclosing party in the receiving party’s possession or control by virtue of the Base Service Agreement and permanently erase all electronic copies of such confidential information promptly upon the written request of the disclosing party upon the expiration or termination of the Base Service Agreement. The receiving party will certify in a writing signed by an officer of the receiving party that it has fully complied with its obligations under this section.
Flintfox disclaims any interest in Client data and all worldwide intellectual property rights and proprietary rights relating thereto or embodied therein, are the exclusive property of the Client, Client suppliers and Client customers. Client is solely responsible for Client data and Client will not provide, post or transmit any Client data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Flintfox may take remedial action if Client data violates this section; however, Flintfox is under no obligation to review Client data for accuracy or potential liability. Client hereby grants to Flintfox all necessary licenses in and to such Client data solely as necessary for Flintfox to provide the Services to Client contemplated by the Base Service Agreement or as required by law. Client will be solely responsible for providing all Client data required for the proper fulfilment of Services. Client and Client’s suppliers and customers reserve all rights in and to the Client data not expressly granted to Flintfox in these FGT&C’s pursuant to the Base Service Agreement, and no other licenses or rights are granted by implication, estoppel or otherwise except as may be separately contemplated in any given Base Service Agreement. Flintfox may not, without Client’s written authorization, utilize Client data for any purpose other than the performance of Flintfox’s obligations under any given Base Service Agreement.
Errors. If in the course of providing the Professional Services, or during the warranty period related thereto, Flintfox discovers or makes a mistake, Flintfox will openly discuss this with Client and Flintfox shall use best efforts to resolve the issue to both parties’ satisfaction.
Flintfox does not accept responsibility or liability for special, indirect or consequential damages, which also includes among other things loss of profits, loss of operations and damages or costs to restore lost or corrupt data.
Flintfox shall not be responsible or liable for Professional Services Flintfox performs to plans or instructions that Flintfox did not prepare. However, Flintfox shall remain liable for the actions of any of Flintfox’s Professional Services sub-contractors.
Force Majeure. Neither party shall be liable to the other and neither party shall be deemed to be in default for any failure or delay to observe or perform any of the terms and conditions applicable to the party under the Base Service Agreement (other than the payment of money) caused or arising out of any act beyond the control of that party including (but not limited to) fire, flood, lightning, storm and tempest, earthquake, strikes, lock-outs or other industrial disputes, acts of war, riots, explosion, government restriction, unavailability of equipment or product or other causes whether the kind enumerated above or otherwise which are beyond the control of that party and where such failure or delay is caused by one of the events above then all times provided for in this MPSA shall be extended for a period commensurate with the period of the delay.
Flintfox will defend at its own expense any action against Client brought by a third party to the extent that the action is based upon a claim (a) for personal injury (including death) or property damage arising out of negligent or willful acts or omissions to act of employees, contractors, or agents of Flintfox; (b) related to or arising from any actual or alleged failure by Flintfox to pay when due all federal, state and local taxes and contributions imposed or required under unemployment insurance, social security, and income tax laws with respect to Flintfox or its staff engaged in performance of the Base Service Agreement; or (c) that any Deliverable or Flintfox Application Services infringe upon or misappropriates a patent, trademark, trade secret, copyright or other proprietary interest of any third party (each, a “Claim”). Flintfox shall indemnify Client from and against any losses, liabilities costs and expenses attributable to such Claim or those costs and damages agreed to in a monetary settlement of such Claim. Flintfox will not consent to the entry of any judgment or enter into any settlement or compromise negatively affecting Client, to the extent that the judgment, settlement or compromise requires the admission of liability, fault, or wrongful act or conduct on the part of Client and/or otherwise involves more than the payment of money by Flintfox, without the prior written consent of Client. The foregoing obligations are conditioned on Client
notifying Flintfox promptly in writing of such action,
giving Flintfox sole control of the defense thereof and any related settlement negotiations, and
cooperating and, at Flintfox’s request and expense, assisting in such defense or settlement.
If any Deliverable or Flintfox Application Services becomes, or in Flintfox’s opinion is likely to become, the subject of an infringement claim, Flintfox may, at its option, either:
procure for Client the right to continue using such Deliverable or Flintfox Application Service, or
replace or modify such Deliverable or Flintfox Application Service so that it becomes non-infringing provided that such replacement or modification shall not reduce the features or functionality of such Deliverable or Flintfox Application Service.
Notwithstanding the foregoing, Flintfox will have no obligation under this Section or otherwise with respect to any infringement claim based upon
In the event of a dispute arising between the parties about interpreting or implementing the Base Service Agreement:
Informal Resolution. The parties will use their best efforts to resolve the dispute by negotiation in good faith. The parties will attend at least one meeting or conference call to discuss and attempt to resolve the dispute as a condition precedent to taking any other steps concerning the dispute (including but not limited to commencing any legal proceedings other than an application for injunctive relief). If a dispute is not resolved within thirty (30) days of a notice by one party to the other to attempt to resolve a dispute pursuant this paragraph (a) and the Notice provision hereof, either party may bring a formal proceeding.
Agreement to Arbitrate.
If this contract is executed outside of the United States of America, and any dispute hereunder cannot be resolved within thirty (30) business days as contemplated in the prior paragraph (a) (unless such period is extended by agreement of the parties), or if a party refuses to comply with its obligations under the Base Service Agreement, such dispute and any related claims relating to the Base Service Agreement shall be and is hereby submitted to arbitration in accordance with, and subject to, Resolution Institute Arbitration Rules. Notwithstanding the existence of a dispute or difference each party shall continue to perform the Base Service Agreement except to the extent such performance is excused pursuant to the terms hereof. Arbitration will be held in Auckland, New Zealand. The determination of the arbitrator will be final and binding on the parties. Arbitration costs will be apportioned between the parties in the manner determined by the arbitration.
If this contract is executed within the United States, then if any dispute cannot be resolved within thirty (30) business days as contemplated in the prior paragraph (a), or if a party refuses to comply with its obligations under this MPSA, the parties agree to resolve any such dispute and any related claims relating to the Base Service Agreement through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in Cincinnati, Ohio, or any other location that the parties agree to in writing, before a single arbitrator. The determination of the arbitrator will be final and binding on the parties. Arbitration costs will be apportioned between the parties in the manner determined by the arbitration.
Exception to Agreement to Arbitrate. Either party may bring a lawsuit in the federal or state courts of Hamilton County, Cincinnati, Ohio solely for injunctive relief to stop unauthorized use or abuse of the Professional Services or infringement of Intellectual Property Rights without first engaging in the informal dispute notice process described in paragraph (a) above or the arbitral proceedings contemplated by paragraph (b) above. Both parties consent to venue and personal jurisdiction there.
Governing Law. If Client executed the Base Service Agreement within the United States of America, Ohio state law governs the interpretation of the Base Service Agreement and applies to claims for breach of it, regardless of conflict of laws principles. If Client executed the Base Service Agreement outside of the United States of America, then the law of Country of Customer governs the interpretation of this MPSA and applies to the claims for breach of it, regardless of conflict of laws principles.
Assignment. Neither party may assign or transfer the Base Service Agreement to a third party, except the Base Service Agreement, if it is a Master Professional Services Agreement or a Support Services Agreement, may be assigned as part of a sale of all, or substantially all, the assets or business of the assigning party. Notwithstanding the foregoing, Flintfox may subcontract performance of any of its obligations and responsibilities under (i) Master Professional Services Agreement and any Work Order or (ii) any Support Services Agreement, provided, however, that such subcontracting shall not relieve the Flintfox from any of its liabilities, obligations and responsibilities hereunder or under any such agreement. Flintfox shall perform all liabilities, obligations and responsibilities under any such agreement as prime contractor and shall remain primarily responsible and liable for the activities sub-contracted and for such of the acts and omissions of any subcontractors in respect of such activities as would render the Flintfox liable to Client, had such acts or omissions been Flintfox’s own acts and omissions. Client may not transfer Client’s Subscription under any Base Service Agreement to a third party without Flintfox’s express written prior consent. For the purposes of the preceding sentence, a transfer shall include any voluntary or involuntary assignment, by operation of law or otherwise, or a change in control of Client in any single or series of transaction(s).
Severability. Each provision in the Base Service Agreement is severable in whole or in part. If any provision in the Base Service Agreement is illegal or unenforceable for any reason, the parties shall strike such provision from the Base Service Agreement. The balance of the Base Service Agreement shall continue in full force and effect.
Non-Solicitation. During the term of the Base Service Agreement and for a period extending twelve (12) months after termination or expiration of the Base Service Agreement, Client agrees that it shall not either directly or indirectly solicit, recruit or hire as an employee, consultant, or independent contractor, any personnel of the other party of Flintfox. Remedy for any violation of this provision shall be liquidated damages in the amount equal to 75% of the employee’s annual salary, including bonuses, currently in effect for the employee. The parties agree that any damages from the breach of this provision would be difficult to determine and that the remedy set forth herein is a reasonable estimate of such damages. The provisions of this Section shall not restrict the hiring of an employee who responds to advertising at a job fair or in media circulated to the general public or the solicitation of a former employee who has not been engaged in the performance of the work order for ninety (90) or more days.
Survival and Waivers. All terms of the Base Service Agreement that would naturally survive termination or expiration shall survive. A waiver by a party of any breach of the Base Service Agreement will not be construed as a waiver of any continuing or succeeding breach.
Publicity. Without Client’s express prior written consent, which it may provide in its sole discretion, Flintfox shall not use Client’s name, logo, or the name of any affiliate of Client, or any divisions or business units of any of them, or the name of any product or service of any of Clients or its affiliates, in connection with any marketing, advertising, or other publicity.
Confidentiality of the Base Service Agreement. Neither party will disclose terms of the Base Service Agreement to anyone other than its attorneys, accountants, and other professional advisors except (a) as required by law or (b) pursuant to a mutually agreeable press release, (c) with respect to Flintfox and any Base Service Agreement that is a Microsoft Software Subscription Agreement, to Microsoft or (c) in connection with contemplated transfer of such party’s business permitted by the Base Service Agreement.
Notices. Any notice to be given under the Base Service Agreement shall be made in writing, e-mail or facsimile transmission sent to the registered office or principal place of business of the recipient or to any other address as may be notified by any party to the other from time to time. Any communication sent:
in writing will be deemed to be received when left at the specified address of the recipient or two Business Days following the time it would have been delivered in the ordinary course of the post to the address to which it was sent date of posting; or
by e-mail will be deemed to be received when transmitted to the correct e-mail address of the recipient and acknowledged by recipient by any means; or
by facsimile will be deemed to be received when transmitted to the correct facsimile number of the recipient and on the receipt by the sender of a transmission receipt.
Delivered by hand, the party who sent the notice holds a receipt for the notice signed by a person employed at the physical address for service.
Access to Client Systems and Staff. For the performance of Services Flintfox will require the appropriate access to Client systems and infrastructure. If Client is unsure what access is required Client is obligated to speak with its nominated Flintfox representative. For the performance of services Flintfox will require access to Client subject matter experts. Client acknowledges that this is a condition to Flintfox’s performance that, if not made available by Client to Flintfox, may cause additional costs and delays for which Client shall bear all responsibility.