Xalt Master Services Agreement
This is a Master Services Agreement between Catavolt, Inc., dba Hexagon Platform Solutions (“we” or “Hexagon”) and the customer who signs our Service Order (“you” or “customer”).
- How The Agreement Works
- Our Obligations
- Your Obligations
- Limited Warranty
- Use of the Services
- Support and Uptime Guarantee
- Unauthorised Access To Your Data Or Use Of The Services
- Fees and Taxes
- Export Matters
- Changes To The Acceptable Use Policy
- Suspension Of The Services
- Termination For Breach
- Termination For Convenience
- Confidential Information
- Limitation Of Damages
- Ownership Of Property
- Intellectual Property Management
- Force Majeure
- Governing Law, Lawsuits
You will be asked to sign a Service Order that describes the services you have chosen and the related fees. The Service Order will incorporate this Master Services Agreement and an Acceptable Use Policy. When we use the term “agreement” in any of these documents, we are referring collectively to all of them. The agreement is effective as of the time that you and we sign the Service Order.
“Acceptable Use Policy” or “AUP” means the Xalt Acceptable Use Policy posted at hexagonxalt.com/legal-eu as of the date you sign the Service Order.
“Business Day” or “Business Hours” means, with respect to Hexagon, 8:00 a.m. – 5:00 p.m. Monday through Friday, United States Eastern time, excluding national public holidays, excluding federal public holidays in the United States; and with respect to customer, 8:00 a.m. – 5:00 p.m. Monday through Friday, Central European Time.
“Data Source” means a) a database platform and version, such as Microsoft SQL Server 2012, IBM DB2 10.1 or Oracle Database 11g, or b) a business system and version, such as SAP ERP 6.0 or Microsoft Dynamics AX 2012. A data source does not have to be on-premise. For example, a cloud database such as a MySQL instance on Amazon EC2 could be a data source.
“Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the agreement, that has been maintained as confidential by the disclosing party and that the recipient should reasonably understand to be confidential, including
- for you, all confidential information transmitted to or from, or stored on, our Xalt servers, including property defined in Section 21
- for Hexagon, unpublished prices and other terms of service, audit and security reports, the property (as defined in Section 21) and other proprietary technology
- for both of us, information that is marked or otherwise conspicuously designated as confidential.
Information that is developed by one of us on our own, without reference to the other’s confidential information, or that becomes available to one of us other than through violation of the agreement or applicable law, or that was known to the recipient or the public prior to disclosure under the agreement, shall not be “confidential information” of the other party.
“Device” means a machine that is capable of viewing and/or entering data presented by Xalt.
“External user” means a human being who is not your employee or independent contractor.
“Internal user” means a human being who is your employee or independent contractor.
“Kiosk” means a single device that will be shared by multiple human users one at a time.
“Read-only Use” means allowing the end user to retrieve information from the data source. It excludes sending information to the data source for the purpose of updating the database. Read-only use permits sending data necessary for data retrieval, such as user identification, program names and search parameters.
“Read-write Use” includes read-only use plus the ability to send information to the data source for the purpose of updating the database.
“Service Commencement Date” means the date on which we provide the URL and access codes that enable you to send and receive information via the services.
“Satellite Server” means the software provided by Hexagon and installed in your data center to provide communications between the Xalt server(s) and your enterprise system(s).
“Personal Data” means personal data provided by you under this agreement.
“Services” means the information technology services described in a Service Order.
“User” means a single human being employing one or more devices at any given time.
“User Profile” means the record created in Xalt to identify a single user.
“Node License” means a license to use Xalt on any and all capable servers/CPU's, user workstations or other machines and devices concurrently under your control so long as the concurrent usage by you does not exceed one thousand (1,000) concurrent users per node license. This license shall apply to all Servers/CPUs, workstations and other machines and devices regardless of their current or future capacity in terms of measured service units (MSUs), cores, group designation or other classification. For the avoidance of doubt, use of any client side software for development purposes does fall under the concurrent use limitation stated herein.
Hexagon will provide the services to the standards stated in the Service Order for the term of the agreement. Hexagon is the exclusive supplier of the services and the exclusive owner of all right, title and interest in and to the services, all software, databases and other aspects and technologies related to the services, and any enhancements thereto and any materials provided to you by Hexagon through the services or otherwise. You may not use the services except pursuant to the limited rights expressly granted in any corresponding Service Order.
You must use reasonable security precautions in light of your use of the services. You must comply with the laws applicable to your use of the services and with Hexagon’s Acceptable Use Policy. You must cooperate with Hexagon’s reasonable investigation of service outages, security problems, and any suspected material breach of the agreement by you. You must provide Hexagon with accurate information to help Hexagon determine if any tax is due with respect to the provision of the services. You are responsible for keeping your billing and other account information up to date. You must pay when due the fees for the services stated in the Service Order(s). On all undisputed past due amounts, interest will automatically accrue and be charged to you without further notice at the rate of one and one-half percent (1.5%) per month (18% annually), or the highest rate allowed by law, whichever is lower. In the event of any dispute regarding a portion of an invoice, you agree to pay the undisputed portion. In addition, you agree to pay all expenses of collection, including reasonable attorneys' fees, if amounts owing by you are collected by or through a collection agency.
We do not promise that the services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy and confidential Information. However, Hexagon does represent and warrant to you that the services will be performed.
- in a manner consistent with industry standards reasonably applicable to the performance thereof;
- at least at the same level of service as provided by Hexagon generally to its other customers for the same services; and
- in compliance in all material respects with the applicable services’ descriptions.
You will be deemed to have accepted the services unless you notify Hexagon within thirty (30) days after performance of any of the services of any breach of the foregoing warranties. Your sole and exclusive remedy, and Hexagon’s sole obligation, for breach of the foregoing warranties shall be for Hexagon, at its option, to reperform the defective services at no cost to you, or, in the event of interruptions to the services caused by a breach of the foregoing warranties, issue you a credit in an amount equal to the current services fee pro rated by the number of hours in which the services have been interrupted.
THE LIMITED WARRANTY DEFINED ABOVE IS THE SOLE AND EXCLUSIVE WARRANTY OF HEXAGON AND IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER OBLIGATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WHICH WE DISCLAIM, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THE SERVICE ORDER, THE SERVICES ARE PROVIDED “AS IS.”
Reproduction, retransmission, dissemination or resale of the services is prohibited without prior written contractual agreements and/or approvals from Hexagon. You are responsible for your connection compatibility with the services and that your connection meets applicable regulatory standards. You are responsible for the purchase and maintenance of any additional hardware, software and/or Internet access required to use the services. Except as provided otherwise by law, you have no property rights to any identifier, including, without limitation, any IP address, any email address or any other identifier of the services (“identifier”), provisioned by us, or our agents, and you agree we may change any such identifier at any time with at least thirty (30) days prior notice to you.
The parties intend to comply with applicable data protection and data privacy laws to the extent that those laws apply to the services. You agree that in relation to personal data you are a data controller and in that capacity you remain solely responsible for (i) determining the purposes and means of Hexagon’s use of the personal data; and (ii) ensuring that the agreement includes appropriate technical and organisational measures to protect the personal data as may be required by applicable data protection laws. Hexagon will use personal data solely for the purpose of providing the services.
When you notify us of an issue, we will respond within the timeframe defined below of your submission of notification via one of the contact avenues referred to above.
Critical business impact
Customer's production use of our products on a primary business service, major application or mission-critical system is stopped or so severely impacted that the customer cannot reasonably continue work.
For Severity Level 1 problems, we will begin work on the problem within one hour of notification and handle as the highest priority until the customer is given a fix or workaround. Customer resources must be made available in Severity Level 1 situations and reasonably cooperate to help resolve the issue.
Severity Level 1 problems could have the following characteristics:
Note: Severity Level 1 service requests cannot be logged through our support site or email and must be reported via telephone.
Within 1 business hour
Significant Business Impact:
Important product features are unavailable with no acceptable workaround. Customer's implementation or production use in a primary business service, major applications or mission critical systems are functioning with limited capabilities or are unstable with periodic interruptions. The software may be operating but is severely restricted.
Severity Level 2 problems could have the following characteristics:
Within 4 business hours
Minimal Business Impact:
Product features are unavailable but a workaround exists and the majority of software functions are still useable. Minor function/feature failure that the customer can easily circumvent or avoid. Customer's work has minor loss of operational functionality.
Severity Level 3 problems could have the following characteristics:
Within 1 business day
Nominal Business Impact:
Minor problem or question that does not affect the software function such as How To's, documentation, general questions, or enhancement requests. There is no impact to product usage or customer's operations.
Severity Level 4 problems could have the following characteristics:
Within 2 business days
We guarantee that our data center will be available 99.5% of the time, twenty-four (24) hours per day, seven (7) days per week, in any given monthly billing period, excluding scheduled maintenance and emergency maintenance. We guarantee that service will be restored within twelve hours of problem identification. After twelve hours we will credit you three percent (3%) of the monthly service fee for each hour, or portion thereof, for non-availability of the services up to 100% of the monthly service fee.
To receive a credit, you must log a request on the support web site within fifteen (15) days following the restoration of availability and provide logs or other evidence of our failure to meet the uptime guarantee.
You are not entitled to a credit if
- The lack of availability was due to inability to connect to our data center or due to other circumstances beyond our control. The services are subject to transmission limitations, reduction in transmission speed, or interruption caused by weather, your equipment, terrain, obstructions such as trees or buildings, or other conditions beyond our control. The services may be limited in some areas where high speed connectivity is not available or may be temporarily limited or interrupted due to system capacity limitations, system repairs or modifications, or in response to suspected fraud, abuse, denial-of-service attacks, misuse of the network, hacking or malicious viruses or violations of our AUP and other policies provided to you in advance.
- The lack of availability was due to your request or was approved by you in advance.
- The lack of availability would not have occurred but for your misuse of the services.
- You are in breach of this agreement as described in Section 14, Termination for Breach, or the non-availability was caused by such breach.
Notwithstanding anything to the contrary, the maximum total credit for the monthly billing period, including all guarantees, shall not exceed one hundred percent (100%) of your monthly service fee for the billing period in which we failed to meet our uptime guarantee.
This credit is your sole and exclusive remedy for our failure to meet our uptime guarantee.
Hexagon is not responsible to you for unauthorised access to your data or the unauthorised use of the services unless the unauthorised access or use results from Hexagon’s failure to meet its security obligations stated in the agreement. You are responsible for the use of the services by any employee or independent contractor of yours, any person to whom you have given access to the services, and any person who gains access to your data or the services as a result of your failure to use reasonable security precautions, even if such use was not authorised by you.
The initial term begins on the Service Commencement Date and continues for the period stated in the Service Order. Except for the term of proof-of-concept or free trial periods, and unless stated otherwise in the Service Order, if you do not renew the agreement for a fixed term it will automatically renew for successive extended terms equal to the active term unless and until one of us provides the other with thirty (30) days advance written notice of non-renewal.
Annual hosting fees will be invoiced on the first of the month prior to the start of the service year. Monthly fees will be invoiced on the first of the service month. If the services start after the first of the month, Hexagon will have the option of 1) sending a prorated invoice for a partial month or 2) adding the prorated amount to the next monthly invoice. All undisputed invoices will be due in thirty (30) days after receipt. All fees are exclusive of taxes. Unless stated differently in a Service Order, all fees are denominated in United States dollars and all payments of fees must be made to Hexagon in Euros. Hexagon may suspend all off the services if payment of any undisputed invoiced amount is overdue, and you do not bring your account current within thirty (30) days of receipt of our written notice to your billing contact. Invoices that are not disputed within one hundred eighty (180) days of the invoice date are conclusively deemed accurate. You agree that Hexagon may charge a five hundred dollar ($500) fee to reinstate your service after suspension for nonpayment.
Following expiration of the term of the agreement (excluding the term of the proof-of-concept or any free trial period), we may increase the fees for the services on thirty days advance written notice unless you have agreed to a fixed renewal term.
You shall pay all taxes, if any, however designated and in addition to the fees payable to Hexagon that are incurred in connection with, or as a result of this agreement, or the services, including, without limitation, state and local privilege, excise, sales, VAT, and use taxes, paid or payable by Hexagon, except any tax based on Hexagon’s net income. If Hexagon is required by law to pay taxes on the provision of the services, you must pay Hexagon the amount of the tax that is due or provide Hexagon with satisfactory evidence of your exemption from the tax.
The services are of United States origin for purposes of United States export control laws. You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Hexagon is legally prohibited to provide the services. You may not use the services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to the nations of Cuba, Iran, Libya, Sudan, North Korea or Syria or any country that is embargoed or highly restricted under United States export regulations.
We may change our Acceptable Use Policy to add restrictions on your use of the services provided that any new restrictions are reasonable and consistent with our hosting industry norms. Any changes made to the AUP during the term of the agreement will become effective to you upon the first occurrence of:
- Your execution of a new/additional Service Order(s) for your configuration that incorporates the revised AUP by reference
- Thirty days following our notice to you describing the change
If a change to the AUP materially and adversely affects you, you may terminate the agreement by giving us written notice of termination on such grounds no later than thirty days following the date the change became effective as to you. We will not charge you an early termination fee for a termination on such grounds.
You agree that we may suspend the services without liability if:
- We reasonably believe that the services are being used by you in material violation of the agreement
- You don’t reasonably cooperate with our reasonable investigation of any suspected material violation by you of the agreement
- The suspension of services is necessary to protect the Xalt server
- The suspension of services is required by law
We will give you advance notice of a suspension under this paragraph of at least twelve (12) business hours unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Hexagon or its other customers from imminent and significant operational or security risk.
You may terminate the agreement for breach if:
- We materially fail to provide the services as agreed and do not remedy that failure within ten days of receipt of your written notice describing the failure
- We materially fail to meet any other obligation stated in the agreement and do not remedy that failure within thirty days of your written notice describing the failure
We may terminate the agreement immediately for breach if:
- We discover that the information you provided to us for the purpose of establishing the services is materially inaccurate
- The individual signing the agreement did not have legal right or authority to enter into the agreement on behalf of the person represented to be the customer and we do not obtain an authorised signature within thirty (30) days of our written notice
- Your payment of any undisputed invoiced amount is overdue and you do not pay the overdue amount within thirty days of our written notice
- You fail to comply with any other material provision of the agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure
- You violate any rule, law order, regulation or policy applicable to the services and do not remedy the violation within thirty (30) days of our notice to you describing the violation.
We may also terminate the agreement for breach if you violate the AUP more than once even if you cure each violation. If we terminate the agreement for your uncured material breach, the payment for the unused portion of your term is forfeited.
If you have agreed to a proof-of-concept project or free trial period and do not purchase a subscription by the end of that period, and unless stated otherwise in the Service Order, the agreement will terminate at the end of the term of the proof-of-concept or free trial period.
Either you or Hexagon may terminate the agreement for convenience at the end of a term on thirty days’ advance written notice.
Each of us may terminate the agreement immediately if the other files for bankruptcy or is insolvent, make a general assignment for the benefit of creditors, suffer or permit the appointment of a receiver for its business or assets, becomes the subject of any proceeding under any bankruptcy or insolvency law or has wound up, liquidated or dissolved, whether voluntarily or otherwise.
Those sections of this agreement that, by their express wording or inherent nature, are intended to survive expiration or termination of this agreement, will survive any expiration or termination of this agreement, including, but not limited to Sections 2, 10, 16, 18, 19, 20, 23, 25 and 26.
Each of us agrees not to use or exploit the other’s confidential information except in connection with the performance or use of the services, as applicable, or the exercise of our respective legal rights under the agreement. Each of us agrees not to directly or indirectly, during the term and for the three (3) year period following the expiration or termination of the term, disclose, transfer, sell or publish the other’s confidential Information to any third person except as follows:
- To our respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in this Master Services Agreement, and to respective business, legal and financial advisors with a need to know;
- To law enforcement or government agency if requested, or if either of us reasonably believes that the other’s conduct may violate applicable criminal law;
- As required by law; or
- iv. In response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing confidential information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice
Upon cancellation of the services we will return or destroy at your discretion any of your confidential information in our possession within sixty (60) days of your termination date or your final payment date, whichever is later.
You agree that we may publicly disclose that we are providing the services to you and may include your name in press coverage, on the Hexagon web site and in other promotional materials.
We will not be liable to you for lost data, the inoper¬ability of the services, operating labour, or overhead. Neither of us (nor any of our employees, agents, members, shareholders, managers, affiliates or suppliers) is liable to the other for any indirect, special, incidental or consequential losses or damages of any kind, including lost profits or loss of goodwill, or for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for punitive damages.
NOTWITHSTANDING ANYTHING IN THE AGREEMENT (INCLUDING IN THE SERVICE ORDER) TO THE CONTRARY, EXCEPT FOR CLAIMS BASED ON OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE MAXIMUM AGGREGATE MONETARY LIABILITY OF HEXAGON AND ANY OF ITS EMPLOYEES, AGENTS, MEMBERS, SHAREHOLDERS, MANAGERS, SUPPLIERS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, STRICT LIABILITY, OR INFRINGEMENT) SHALL NOT EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY YOU UNDER THE SERVICE ORDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO YOUR CLAIM. THE RECOVERY OF ANY SUCH AMOUNTS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY AGAINST HEXAGON.
If you, your affiliates, or any of your or their respective employees, agents, independent contractors or suppliers, is faced with a legal claim by a third party arising out of Hexagon’s actual or alleged gross negligence, willful misconduct, violation of law, or our failure to meet the security obligations required by the agreement, then, subject to the limitations set forth in Section 18 above, Hexagon will pay the cost of defending the claim (including reasonable attorney fees) and any damages, award, fine, or other amount that is finally imposed on you as a result of the claim.
If we, our affiliates, or any of our or their respective employees, agents, independent contractors or suppliers is faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the agreement, violation of the AUP, violation of your agreement with your suppliers, violation of export matters of this Master Services Agreement or any other breach of this agreement, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is finally imposed on Hexagon as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the services, and any person who gains access to the services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons are not authorised by you.
You must also pay reasonable attorney fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with us, or any claim by your supplier or end user arising from an actual or alleged breach of your obligations to them.
If you want to give us a notice regarding termination of the agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and international overnight courier to:
555 N Point Ctr E Ste 550
Alpharetta, GA 30022
Hexagon’s routine communications regarding the services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail or international overnight courier, except that Hexagon may give notice of an amendment to the AUP by posting the notice on the Hexagon web site. Notices are deemed received as of the time delivered, or if that time does not fall within a usiness day, as of the beginning of the first business day following the time delivered, except that notices of AUP amendments are deemed delivered as of the first time the notice is posted. Notices must be given in the English language.
You retain sole and exclusive ownership, title and all copyright, patent and intellectual property rights in and to all information, data, documents, documentation, systems, software, specifications, and all other data furnished by you to Hexagon or made accessible to Hexagon pursuant to the terms of the agreement. We do not acquire any ownership interest in our right to the information you transmit to or from the Xalt server(s).
Hexagon represents and warrants to you that it is the sole and exclusive owner of all title and all copyright, patent and intellectual property rights in and to all information, drawings, designs, documents, documentation, systems, software, configurations, specifications, the services and products (collectively the “property") furnished by Hexagon or produced or made accessible to you pursuant to the terms of the agreement, and that the property does not infringe on the intellectual property rights of any third party. You do not acquire any ownership or other rights in the property.
If Hexagon or any of its customers is faced with a credible claim that the services infringe or allegedly infringe on the intellectual property rights of a third party, and Hexagon is not reasonably able to obtain the right to use the infringing element or modify the services such that they do not infringe, then Hexagon may terminate your license to the services on reasonable notice of at least ninety (90) days, and will not have any liability on account of such termination except to refund amounts paid for your license to the services not used as of the time of termination.
We may assign the agreement in whole or in part as part of a corporate reorganisation or a sale of our business, or to one of our affiliates. You may not assign or transfer the agreement without our prior written consent, which may be withheld in our sole discretion.
Neither of us will be in violation of the agreement, or liable for any damage, cost or expense if the failure to perform the obligation is due to an event beyond our control, such as a failure of a part of the power grid, a failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organised labour action, terrorism, acts, orders or requirements of government, or nonperformance by our vendors.
This agreement will be governed by and construed in accordance with English law, without regard to its principles governing conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this agreement. The parties will endeavor to resolve controversies or claims under this agreement (other than where a party seeks injunctive relief) through discussions between the parties. All disputes arising under, or out of or relating to, this agreement (including any as to arbitrability) not settled by discussions between the parties shall be finally resolved by binding arbitration through and under the London Court of International Arbitration Rules (the “LCIA Rules”) using a single neutral arbitrator with experience in similar disputes chosen according to the LCIA Rules. The arbitration shall be conducted in English. The site of the arbitration shall be London, England. Such arbitration shall be the sole and exclusive means of resolving disputes hereunder, and shall be final, binding and non-appealable to any court or forum. Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Interest on any arbitration award will be in the amount determined by the arbitrator. Nothing in this Arbitration provision shall prohibit (i) Hexagon from seeking payment of overdue fees or (ii) either party from seeking injunctive relief from a court of competent jurisdiction. Where Hexagon seeks payment of overdue fees or either party seeks injunctive relief, the parties agree to the non-exclusive jurisdiction of the English courts.
If you have made any change to the agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the agreement.
We have the right to electronically audit you at any time to determine the number of users. If we determine that the number of users exceeds the number of licenses, additional charges will apply.
Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
The agreement is the complete and exclusive agreement between you and Hexagon regarding its subject matter and supersedes and replaces any prior agreement, understanding or communications, written or oral. As used in this agreement, “including” means “including, without limitation.”