Terms of Service - Licensing Agreement | Anderson-Taylor
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TERMS OF SERVICE
Licensing Agreement

For Anderson Taylor software and service products

 

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MASTER SOFTWARE LICENSE AGREEMENT
 

Version 101823


Terms of Service of Anderson Taylor, LLC., operating under the name Anderson Taylor, with its principal office located at 3365 Piedmont Rd NE #1400; hereinafter referred to as “Anderson Taylor”.

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By using any of the Anderson Taylor products or services you and the entity you represent agree to the following terms:

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Scope of the Terms of Service

All the offers, agreements or services of whatever nature of Anderson Taylor are subject to the terms of service (this document) which Anderson Taylor has correctly provided to Licensee.

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1. Definitions

2. Order of precedence

3. Scope of the license

4. Duration and terminatin

5. License fees

6. Additional services

7. Intellectual property rights of Anderson Taylor

8. Promotion

9. Data protection

10. Right to audit

11. Assignment

12. Warranty

13. Limitation of liability

14. Service level

15. Confidentiality

16. Force majeure

17. Miscellaneous
 

1. Definitions

For the purposes of these terms of service, the following terms, whenever used with a capital, in both the single and plural form, shall have the meaning as defined hereinafter:

1.1. Additional Services

services as described in article 6;

1.2. Agreement

these terms of service, including Licensed Products;

1.3. Availability

the Anderson Taylor Services is considered available when no priority 1 or priority 2 Defects are open, as described in article 14;

1.4. Changes

all changes to the Anderson Taylor Services as classified in Article 14;

1.5. Contact Persons

the natural person(s) who represent Anderson Taylor in this Agreement and the natural person(s) that are capable of legally representing Anderson Taylor;

1.6. Licensed Products

the Licensed Products that are agreed between Anderson Taylor and Licensee, which are agreed in Writing or online to form an integral part of the Agreement.

1.7. Documentation

any manuals, instructions, readme files and other information concerning the Anderson Taylor Services, made available by Anderson Taylor on andersontaylor.com/docs;

1.8. Defect

a defect in the Anderson Taylor Services that leads to impaired Functionality of the Anderson Taylor Services;

1.9. Force Majeure

a situation as described in article 16 of this Agreement;

1.10. Functionality

the degree of certainty that the processing of data within the Anderson Taylor Services is done correctly. This means that the processing takes place in accordance with the description thereof in the custom development specifications.

1.11. GDPR

regulation (EU) 2016/679, also known as the General Data Protection Regulation;

1.12. Incident

an alleged malfunctioning of the Anderson Taylor Services, which can either be defined as a Defect or as a request for a Non-standard Change;

1.13. Intellectual Property Rights

all intellectual property rights, including but not limited to copyrights, trademark rights, rights to software, database rights and patent rights;

1.14. License Fee

the fee that the Licensee must pay to Anderson Taylor for the use of the Anderson Taylor Services as specified in the Licensed Products;

1.15. Licensee

the contract party of Anderson Taylor or the party who accepted these terms of service;

1.16. License

the license as described in article 3 of this Agreement;

1.17. Licensee Data

all data entered in and/or generated by the Licensee and/or Users connected to the Licensee via the Anderson Taylor Services, that are not the property of Anderson Taylor;

1.18. Maintenance Window

an agreed period in which maintenance takes place that may cause disruption in the use of the Anderson Taylor Services;

1.19. Notification

the registration of an (alleged) Defect by Licensee at the Service Desk;

1.20. Recovery Time

the period between the time of Notification of an Incident and — if the Incident is a Defect — the remedy of that Defect by Anderson Taylor, whether or not by means of a temporary solution. Recovery time only starts and runs during Working Days in the applicable Service Window;

1.21. Request for Change

a request from the Licensee for Changes, made via the Service Desk;

1.22. Response Time

the time within which the Service Desk must respond adequately to a Notification regarding an Incident. Response time only starts and runs during Working Days in the applicable Service Window;

1.23. Service Desk

the central point of contact at Anderson Taylor for the Licensee as described in article 14;

1.24. Service Level

the service level in article 14 as agreed upon between Anderson Taylor and the Licensee. The Service Level is only applicable if the Licensed Products specify that Licensee is on the Enterprise plan;

1.25. Software System

the software of the Licensee in which the Anderson Taylor Services is embedded;

1.26. Anderson Taylor Services

the software as a service solution provided by Anderson Taylor to the Licensee;

1.27. Term

the term as defined in the Licensed Products;

1.28. User

a natural person communicating with the chat application of the Anderson Taylor Services;

1.29. Exceeded Waiting Time

the cumulative of the time that Response Time and Recovery Time are exceeded;

1.30. Written / In Writing

also includes e-mail;

1.31. Working Days

Monday to Friday, excluding national holidays.

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2. Order of precedence

2.1. These terms of service form an integral part of each agreement between Licensee and Anderson Taylor, together with the Licensed Products.

2.2. Any general terms or conditions of the Licensee shall not apply to the agreements between Licensee and Anderson Taylor. Any such general terms are explicitly revoked by Anderson Taylor.

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3. Scope of the license

3.1. Under the terms and conditions of the Agreement and subject to payment of the applicable License Fee(s), Anderson Taylor grants, and Licensee accepts, a non-exclusive, non-transferable, non-sublicensable and revocable license to use the Anderson Taylor Services.

3.2. The Anderson Taylor Services and Documentation are made available to Licensee on andersontaylor.com/docs, Licensee can obtain access to the Anderson Taylor Services by inquiring at andersontaylor.com/.

3.3. Any one (1) license grants Licensee the right to embed the Anderson Taylor Services inside one (1) Software System operated by Licensee, as long as the Software System has a number of monthly active users that is less than or equal to the number of monthly active users described in the Licensed Products.

3.4. Next to the Documentation, Anderson Taylor shall provide Licensee with a reasonable level of support by means of e-mail, chat or similar mechanism in the form of consultations, assistance and advice concerning installation, configuration and use of the Anderson Taylor Services. After the Anderson Taylor Service is installed and working, any additional support, shall in principle fall under the agreed terms of article 6 and 7.

3.5. Licensee shall use the Anderson Taylor Services as described in the Documentation.

3.6. The Licensee has no right to (sub)license, sell, assign, modify, translate, decompile, create derivative works or otherwise change or commercially exploit the Anderson Taylor Services, and/or make available the Anderson Taylor Services to any third party without the prior, explicit and Written approval of Anderson Taylor.

3.7. Licensee is not permitted to reconstruct the source code of the Anderson Taylor Services by means of reverse engineering.

3.8. If Licensee requires information to effect interoperability of the Anderson Taylor Services with other software, Licensee will request Anderson Taylor in Writing and with motivation for the necessary information. Anderson Taylor will then inform the Licensee within a reasonable period of time whether Licensee can obtain the requested information and under which condition it is provided.

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4. Duration and termination

4.1. After expiry of the Term, the Agreement is automatically extended for an indefinite period of time. Anderson Taylor and Licensee are entitled to terminate the Agreement with a notice period up to the next payment obligation of the Licensee with respect to the Licensee Fee (depending on the Agreement this means the end of the month or the end of the year), whereby termination can be given without reason and motivation.

4.2. Anderson Taylor and Licensee are entitled to terminate the Agreement with immediate effect in whole or in part, without obtaining any obligation to compensate for any damage, if one of the following circumstances occurs:

  • the other party is granted a moratorium of payments (whether or not provisionally); bankruptcy is requested for the other Party;

  • the other party is declared bankrupt;

  • a Party infringes the terms of this Agreement and does not or is unable to remedy such infringement within fourteen (14) days after given Written notice by the other Party.

4.3. Anderson Taylor is entitled to terminate the License without any judicial intervention, without obtaining any obligation to compensate for any damage, with immediate effect and by giving Written notice to the Licensee, if (i)the Licensee infringes the rights of Anderson Taylor, including but not limited to Anderson Taylor's Intellectual Property Rights, (ii) the Licensee uses the Anderson Taylor Services for unlawful purposes or for purposes contrary to public policy and public decency, (iii) the Licensee uses the Anderson Taylor Services in such a way that the Anderson Taylor Services is damaged, modified, interrupted, or is less efficient in any way, (iv) the enterprise of the Licensee is terminated or transferred in whole or in part to a third party or (v) the Licensee announces an action that puts Anderson Taylor in a disadvantageous position.

4.4. A party seeking termination of the Agreement shall provide written notice of termination to the other party.

4.5. Upon termination of the Agreement for whatever reason, the Licensee shall promptly delete the Anderson Taylor Services from its Software System(s) and return or delete all copies of the Anderson Taylor Services, including modified copies, if any. The Licensee shall certify such deletion in Writing to Anderson Taylor.

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5. License fees

5.1. All agreed fees as described in the Licensed Products shall be paid in a timely manner and in compliance with the payment conditions agreed upon in the Licensed Products and as indicated during the online order process, regardless whether the Anderson Taylor Services is used or not.

5.2. All prices are exclusive tax and other government levies that have been or shall be imposed and Anderson Taylor has the right to increase its prices with tax and other government levies that have been or shall be imposed.

5.3. All invoices and payments shall be in US dollars unless agreed otherwise in Writing.

5.4. Licensee shall pay invoices by means of direct debit or credit card or, if agreed in the Licensed Products or with respect to an Additional Services fee, within thirty (15) days after receipt of the invoice.

5.5. If the Licensee fails to pay the fees due in a timely manner, statutory commercial interest shall be payable by the Licensee on the outstanding amount without a demand notice of default being required. If the Licensee still fails to pay the amount due after receiving a demand or notice of default, Anderson Taylor may refer the debt for collection, in which case the Licensee shall also be obliged to pay all in-court and out-of-court expenses in addition to the total amount due, including all costs charged by external expert.

5.6. In case of non-payment of any (part) of the License Fee or the Additional Services fee, the License may be terminated by Anderson Taylor and all services shut down and all users locked out in accordance with article 4 of this Agreement.

5.7. Upon termination of the Agreement for whatever reason, the Licensee shall promptly pay all outstanding License Fees and/or other fees/amounts due.

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6. Additional services

6.1. Additional Services are services that can be performed by Anderson Taylor, but that are not included in the standard services of the Anderson Taylor Services. Additional Services come with extra costs for the Licensee.

6.2. Anderson Taylor can provide these additional services such as maintenance, creation of updates, training, service or support regarding the Anderson Taylor Services at terms to be agreed upon between Parties.

6.3. Before Additional Services are performed a Written SOW price estimate may first be issued for approval under existing MSA terms if applicable. Depending on the complexity, a step-by-step plan may be offered.

6.4. In principle Anderson Taylor performs Additional Services against a consultancy rate as specified in SOW or MSA agreement. This rate is an indication and Anderson Taylor may, at its sole discretion, deviate from this rate in its offers for Additional Services.

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7. Intellectual Property rights of Anderson Taylor

7.1. The Licensee acknowledges and agrees that the Anderson Taylor Services is protected by Intellectual Property Rights. The Intellectual Property Rights relating to the Anderson Taylor Services are and remain the exclusive property of Anderson Taylor.

7.2. The Agreement does not grant the Licensee any right or title to the Intellectual Property Rights of Anderson Taylor, other than the License provided by article 3 and 8 of these terms of service , nor does the Agreement in any way constitute a transfer or assignment of the Intellectual Property Rights to the Licensee.

7.3. In the event that Anderson Taylor, whether or not upon request of the Licensee, incorporates any new features or functionalities into the Anderson Taylor Services, such new features and/or functionalities shall be the sole and exclusive property of Anderson Taylor, unless explicitly agreed otherwise in Writing.

7.4. Anderson Taylor shall, at its own expense, defend any claim or proceeding brought against the Licensee based on an allegation that the Anderson Taylor Services would constitute an infringement of Intellectual Property Rights, provided that the Licensee promptly notifies Anderson Taylor in Writing of such claim. Licensee shall provide reasonable cooperation and assistance to Anderson Taylor for the defense of such claim or proceeding. If the Anderson Taylor Services, or any part thereof, as a result of any suit or proceeding so defended, is held by a court or arbitration panel to constitute infringement of Intellectual Property Rights of third parties, Anderson Taylor shall at no cost to Licensee either (a) procure for Licensee the right to continue using the Anderson Taylor Services, or any part thereof, (b) replace or modify the Anderson Taylor Services in order to become non-infringing which may accrue additional cost to licensee.

7.5. The Licensee shall not infringe the Intellectual Property Rights of Anderson Taylor or its suppliers or perform any other acts by which the Intellectual Property Rights of Anderson Taylor or its suppliers or the value of such Intellectual Property Rights could in any way be harmed or negatively affected. This means, without being exhaustive, that the Licensee shall not reproduce, multiply, modify, publish, translate, process, rent, exploit, or commercialize the Intellectual Property Rights of Anderson Taylor, or use them in any other infringing way, entirely or partially, in the original or modified form, for commercial or non-commercial purposes.

7.6. Licensee is not permitted to remove any designation concerning copyrights, trademarks, trade names or other rights of (intellectual) property from the Anderson Taylor Services, the Documentation and/or any other Anderson Taylor material.

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8. Promotion

8.1. Licensee is encouraged to publicly report its use of the Anderson Taylor Services, e.g. in press releases, annual reports or environmental reports concerning its organization.

8.2. To this end, Anderson Taylor hereby grants Licensee a non-exclusive, non-transferable, non-sublicensable and revocable license under its trademark(s) and copyrights concerning the name “Anderson Taylor” and the associated logos as made available on the Anderson Taylor website (Anderson Taylor.com) or specifically provided by Anderson Taylor. However, Licensee must use name and logos in unmodified form and Licensee must adhere to any specific rules given by Anderson Taylor, which rules are generally available on the Anderson Taylor website.

8.3. Licensee may not create any false or misleading impressions regarding its affiliation with Anderson Taylor.

8.4. Licensee may not register or apply for any trademarks or Internet domain names that contain the name “Anderson Taylor” its product and service names or any confusingly similar designation. Anderson Taylor is entitled to demand transfer of any such trademarks or domain names by Licensee to Anderson Taylor.

8.5. In light of the promotion of the Anderson Taylor Services, Anderson Taylor is entitled to use Licensee’s name and logo in promotional material regarding the Anderson Taylor Services, unless Licensee object against such use.

8.6. The license of this article terminates automatically upon termination or expiry of the Agreement, regardless of reason.

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9. Data protection

9.1. All the definitions and terms used in this article have the same meaning as they do in the GDPR. If a term doesn’t exist in the GDPR, a meaning should be given that is closest to an existing definition in the GDPR.

9.2. Parties shall act in accordance with the provisions of the GDPR and any future national or European statutory and other rules on the processing of personal data that may be in force from time to time, as far as such provisions legally apply to a Party. If future statutory and other rules reveal a need to adjust the Agreement, the parties will consult with each other for the purpose of making new arrangements that reflect the meaning of the Agreement as much as possible.

9.3. Anderson Taylor shall be considered as the data processor and the Licensee as the data controller. Anderson Taylor shall only store, copy or use Licensee Data, including email addresses, telephone numbers and names of Users, to the extent necessary to perform its obligations under the Agreement and/or for maintenance. Anderson Taylor does not have any control over the purposes and means of the processing of personal data. Nothing in the Agreement is intended to transfer control over personal data to Anderson Taylor in any way. Anderson Taylor shall inform Licensee with undue delay if, in its opinion, an instruction given by Licensee infringes any applicable privacy regulation.

9.4. If the Licensee processes personal data, it will only process general personal data. In no circumstance will Anderson Taylor accept any responsibility or liability for the processing of sensitive personal data.

9.5. Anderson Taylor shall make best efforts to take appropriate technical and organizational measures to ensure an appropriate level of security to protect personal data on the Anderson Taylor Services against destruction, loss, alteration, unauthorized disclosure or access.

Licensee shall take appropriate technical and organizational measures to ensure that personal data on the Anderson Taylor Services is stored securely. This includes, but is not limited to, following all of the security recommendations given in the Documentation or suggested to Licensee by Anderson Taylor staff.

9.6. At the first request of the Licensee, Anderson Taylor may cooperate with the parties concerned to exercise their rights with regard to the processing of Personal Data in accordance with Articles 12 to 23 of the GDPR, including the right to information, access, removal including 'right to be forgotten', rectification, transferability, objection and rights in respect of automated individual decision making, including profiling. This cooperation will in principle be assessed as Additional Services.

9.7. Anderson Taylor agrees to provide Licensee with the necessary information at the latter's request, to ensure that the Licensee is able to investigate Anderson Taylor' compliance with the provisions of this article.

9.8. Licensee is entitled to engage an independent expert to investigate whether Anderson Taylor fulfills obligations described in this article, which independent expert will be under an obligation of confidentiality in respect of the foregoing. Audits will be done maximum once per year. Anderson Taylor shall cooperate in the audit and make all information that is reasonably relevant to the audit available as soon as possible. The costs of the audits carried out on the instructions of the Licensee must be borne by the Licensee.

9.9. Anderson Taylor shall inform the Licensee immediately, but in any case within 48 hours, as soon as it finds that there has been any breach with respect to the personal data. This information provided must enable the Licensee to fulfil its obligations under Articles 33 and 34 of the GDPR.

9.10. Anderson Taylor is under no obligation to perform an assessments as described under article 35 and/or 36 of the GDPR.

9.11. Anderson Taylor shall be entitled to make use of sub-processors without the Licensee's prior Written permission. The list of sub-processors is available upon request. In case Anderson Taylor engages a new sub-processor it will notify Licensee. Licensee may object against this engagement in Writing. If Anderson Taylor persists in engaging a sub-processor after objection of Licensee, Licensee may terminate the agreement with immediate effect. Anderson Taylor remains responsible for the performance of sub-processors it engages.

9.12. Anderson Taylor agrees to maintain confidentiality over personal data it processes and it ensures that the persons authorized to process the Personal Data undertake to maintain confidentiality.

9.13. Upon termination of the Agreement, Anderson Taylor shall:

  • keep available to the Licensee all personal data via the REST API for at least three (3) weeks; or

  • at request of the Licensee delete all personal data.

9.14. Licensee assesses and informs Anderson Taylor about how long certain personal data may be stored on the Anderson Taylor Cloud. Upon the Written request of Licensee Anderson Taylor will delete requested data. Anderson Taylor assesses, at its sole discretion, whether this deletion is deemed an Additional Service or not.

9.15. Licensee warrants that the data processing will be carried out in accordance with the law. This means in any case that the Licensee warrants that it is entitled to collect data or have data collected and that it is entitled to process these data and have these collected.

9.16. Licensee shall indemnify Anderson Taylor for any loss or damage of personal data and costs resulting from any claims by third parties, expressly including the data subjects and supervisory authorities (such as the Dutch Data Protection Authority), relating to or arising from any unlawful processing operation and/or any other violation of the GDPR or the Agreement that can be attributed to the Licensee.

9.17. Anderson Taylor shall ensure that every processing operation of personal data that is performed by or on behalf of Anderson Taylor, including third parties engaged by it for the purposes of the execution of the Agreement, is carried out within the European Economic Area (EEA) or to or from countries that offer an adequate level of protection in accordance with the GDPR.

9.18. Anderson Taylor shall ensure in-transit encryption of all data.

9.19. Anderson Taylor shall ensure at-rest encryption of all data for Licensees who have chosen the Enterprise plan of the Anderson Taylor Services. Anderson Taylor cannot guarantee at-rest encryption of data for Licensees who have chosen any other plan of the Anderson Taylor Services.

 

10. Right to audit

10.1. Anderson Taylor is entitled to investigate whether Licensee uses the Anderson Taylor Services in a manner that complies with the conditions of the Agreement. Licensee undertakes to cooperate with such an audit. Anderson Taylor shall bear the costs of such audit, as long as no infringements of the Agreement are found. If the Licensee is found to infringe the Agreement, Licensee will bear the costs of the audit.

 

11. Assignment

11.1. The Agreement shall not be assigned or otherwise transferred by Licensee without the prior written consent of Anderson Taylor, which shall not be unreasonably withheld. Any such assignment without such consent will be null and void.

11.2. The Licensee accepts that Anderson Taylor may transfer and assign the Licence (entirely or partially) and the performance of all or some of Anderson Taylor's rights and obligations of the Agreement to a third party at any time without the prior Written consent of the Licensee.

 

12. Warranty

12.1. The Anderson Taylor Services is provided “as is” and without any guarantees for Licensee, unless Licensee and Anderson Taylor make other arrangements concerning guarantees in the Licensed Products. Anderson Taylor has the right to incorporate any new features or functionalities into the Anderson Taylor Services, even if these new features or functionalities do not combine well with the Software System. Licensee cannot derive any rights with respect to these new features or functionalities or the Anderson Taylor Services without these new features or functionalities, unless Licensee and Anderson Taylor make other arrangements concerning guarantees in the Agreement.

12.2. The Licensee acknowledges having been fully informed of the characteristics of the Anderson Taylor Services and declares that Anderson Taylor has completely fulfilled its duty of informing the Licensee with respect to the Anderson Taylor Services and its Functionalities.

12.3. The Licensee acknowledges and agrees that the Anderson Taylor Services is provided by Anderson Taylor with no other guarantees or obligations than those provided in the Licensed Products. The Service Level as mentioned in article 14 of these terms of service is only available to Licensees who have chosen the Enterprise plan of the Anderson Taylor Services.

12.4. The foregoing warranties are in lieu of all other warranties, expressed or implied, including but not limited to, implied warranties of fitness for a particular purpose and warranties of merchantability. Excepting the warranty expressly acknowledged hereunder and to the fullest extent permitted by law, Anderson Taylor hereby disclaims and Licensee hereby waives all other warranties, express or implied, including but not limited to all implied warranties of fitness for a particular purpose and all implied warranties of merchantability.

 

13. Limitation of liability

13.1. Under no circumstances shall Anderson Taylor be liable for indirect, incidental or consequential damage arising as a result of the use of the Anderson Taylor Services or Additional Services, including but not limited to the unavailability of the Anderson Taylor Services.

13.2. In any event, the maximum liability of Anderson Taylor towards the Licensee on whatever account shall be limited to the total amount of all License Fees or Additional Services fees paid by the Licensee to Anderson Taylor for the relevant Anderson Taylor Services or Additional Services giving rise to the liability during the course of the year prior to the claim or the amount of $10,000,= (ten thousand), the lower of these two amounts always determining the limit on liability.

13.3. Anderson Taylor is never liable for damages caused by:

i. inexpert use of the Anderson Taylor Services or usage for other purposes then the purposes for which the Anderson Taylor Services is intended according to the Agreement and the Documentation;

ii. the provision of incorrect or incomplete information by the Licensee to Anderson Taylor;

iii. services delivered by third parties upon request of the Licensee without the Written consent of Anderson Taylor, including changes made to the Anderson Taylor Services or the Software System;

iv. problems with the Software System or the non-optimal functioning of the Software System;

v. usage of the Anderson Taylor Services that does not conform to one or more security recommendations, as found in the Documentation or suggested by Anderson Taylor staff to Licensee.

13.4. The Licensee shall indemnify Anderson Taylor from the consequences of any claims by third parties arising from the execution of the Agreement and which are caused by acts attributable to the Licensee.

13.5. To the extent permitted under the applicable law, Anderson Taylor shall not be liable for any loss, damage or or fines imposed by regulatory bodies as a result of or relating to the Anderson Taylor Services, including but not limited to loss of data, income, profit, or other economic advantages.No liability shall exist for damages or fines imposed by regulatory bodies that have not been reported to Anderson Taylor in Writing within thirty (30) days of their occurrence, or for damages where Licensee failed to take appropriate measures to limit such damages.

 

14. Service level

14.1. The aim of this article 14 is to describe the operational services with regard to the Anderson Taylor Services for Enterprise clients. This article gives a reference framework for the expectations with regard to service and support levels for the Licensees who have chosen the Enterprise plan for the Anderson Taylor Services. The Licensees who have chosen any other plan for the Anderson Taylor Services have no Service Level.

14.2. Anderson Taylor will always try to resolve Incidents within the Response and Recovery times set in this article. If it appears that an Incident does not qualify as a Defect, a Anderson Taylor employee will contact the Licensee in order to determine whether the Licensee expects Additional Services.

14.3. The following Service Windows apply for this article:
 

DESCRIPTION

Availability Service Desk

Working Days between 9:00–5:00 Eastern Standard Time

 

Implementation of Changes

Working Days between 9:00–5:00 Eastern Standard Time

 

Plannable Changes with disruption of Functionality 

Working Days and Saturdays between 11:00pm–7:00am 

and Sundays Eastern Standard Time unless otherwise notified

 

14.4. Anderson Taylor has the right to shorten the Service Windows temporarily in connection with maintenance resulting in disruption in the use of the Anderson Taylor Services. If Anderson Taylor wishes to make use of this right, it will timely inform the Licensee. The following information will be given:

  • time frame with which the relevant Service Window is shortened;

  • expected actual duration of the shortening;

  • the services which will be affected; and

  • the level in which the service is affected.

14.5. The following indications of priority are given to Defects:

PRIORITY

1.Overall loss of the Functionality

 

2.Partial or very annoying disruption of Functionality

 

3.Any other Problems which limit the Functionality

 

14.6. Changes will be classified as follows:

  • Emergency Changes: changes that must be implemented without delay in order to guarantee Functionality;

  • Standard Changes: changes that are required for the Anderson TaylorServices to function according to the described Functionalities. Standard Changes will be communicated with Licensee in advance and are preformed within a predefined lead time. There are two Priority levels: high and low priority Standard Changes.

  • Non-standard Changes: changes that are customer-specific and non-essential for the functioning of the Anderson Taylor Services in general. These changes are regarded to fall under Additional Services.

  • Emergency Changes and Standard Changes (with two Priorities) are performed on the basis of the Agreement. Non-standard Changes are carried out on a project basis and charged separately at the agreed prices and rates.

14.7. The priority of Incidents is classified by the person who reports the Incident with the Service Desk, this is done on the basis of the table above. The person who reports an Incident, will submit a clear substantiation of the chosen priority. In the event of a dispute, the classification given by Anderson Taylor to the Incident will prevail.

On the basis of the priority, the reaction and Recovery times apply in accordance with the overview in the table below. Response times apply to all Incidents, Recovery times apply only to Incidents that are also a Defect. The given timeframe only starts after the Licensee has provided Anderson Taylor with sufficient information to comprehend what the Defect is and when the given Service Window has started.These times are estimates only, every effort will be made to provide a solution within the set time but it is not a guarantee.


TYPE OF CHANGE

Emergency changes (priority 1) response time 1 hour, recovery time 6 hours

Standard changes with high  (priority 2) response time 4 hour, recovery time 16 hours

Standard changes with high priority (priority 3) response time 8 hour, recovery time 40 hours

Non-standard changes  response time 8 hour

 

14.8. A Defect is also regarded being resolved if Anderson Taylor realizes a temporary solution that restores the Functionality of the Anderson Taylor Cloud Service. This temporary solution does not release Anderson Taylor from the obligation to repair the Defect. If a notification by a temporary solution instead of priority 1 receives the character of a priority 2 Defect, the Recovery time associated with priority 2 shall applies. The same applies for priority 2 Defect being turned into priority 3 Defect.

14.9. In case a priority 1 or 2 Defect can be resolved with a workaround that needs to implemented by the Licensee, Licensee is obliged to give full cooperation to this implementation. If Licensee fails to cooperate, the time between offering the workaround and this full cooperation will not account as the Anderson Taylor Services not being Available.

14.10. Standard Changes and Non-standard Changes are always requested through the Service Desk. Emergency Changes can also be reported to Anderson Taylor via telephone, when Anderson Taylor is available via this way at the given moment.

14.11. Anderson Taylor guaranties an uptime of 99,9%. The uptime is measured per month. Any down-time due to:

(i) pre-announced activities

(ii) Standard Change requested by Licensee (Priority 3) and

(iii) Non-standard Changes does not affect the uptime.

14.12. The uptime is calculated as follows:

Availability – Exceeded Waiting Time / Total Time x 100% = Uptime

14.13. If Anderson Taylor does not meet this Availability level as described in article 14.11, Licensee will receive a discount on its next License Fee. For any month Anderson Taylor does not meet the availability level, this discount is 10% of that months fee for every .10% less uptime. At no time should the discount exceed the monthly fee. 

14.14. If Anderson Taylor does not meet the agreed Service Levels, this will only lead to the consequences described in this article 14.13. Except for the assertion of any claim based on fraud or willful misconduct, the remedies provided in this article shall be the sole and exclusive legal remedies of the Parties with respect to uptime, Availability and Functionality. Anderson Taylor shall only be in default after the expiry of the term stated in a written notice of default.

14.15. Amendments to the Service Level can only be agreed upon with Contact Persons for the Agreement in Writing.

14.16. The Service Desk is available from Anderson Taylor upon request.

14.17. Parties may differentiate from the provisions in this article in the Licensed Products.

 

15. Confidentiality

15.1. Anderson Taylor and the Licensee shall not disclose to third parties information that comes to their attention in the context of the Agreement and which is confidential, or under the circumstances must be considered as confidential both during and after termination or expiry of the License, and this for as long as the confidential information has a confidential status, with a minimum of five years after the termination or expiry of the Agreement.

 

16. Force majeure

16.1. If Anderson Taylor is unable to satisfy its obligations under the Agreement as a result of force majeure, Anderson Taylor shall not be liable for any delays or shortcomings in the performance of the obligations, nor for any damage arising from this for the Licensee, provided that Anderson Taylor

(i) informs Licensee as quickly as possible after the occurrence by e-mail of the nature and causes of this unforeseeable situation beyond its control, and

(ii) does its best to undo such causes of non-performance as quickly as possible, and

(iii) carefully continues performance as soon as the causes of the force majeure have been eliminated.

16.2. All causes that are beyond the reasonable control of Anderson Taylor, including but not limited to fire, explosions, power failures, earthquakes, floods, very severe storms, strikes, embargos, labour disputes, acts by the civil or military authorities, (cyber) terrorism, natural disasters, acts or neglect of internet traffic services, acts or neglect of regulatory or government bodies and the improper performance of obligations by suppliers or contractors of Anderson Taylor shall be considered as force majeure.

 

17. Miscellaneous

17.1. Amendments to the Agreement can only be agreed upon between Parties in Writing.

17.2. Anderson Taylor reserves the right to adapt or amend the Agreement at any time. Licensee will accept these changes within the Term or otherwise terminate the Agreement after the Term.

17.3. Articles 7 (Intellectual Property Rights), 14 (Liability), 15 (Confidentiality), and 18 (Applicable Law) remain applicable after termination of the Agreement.

17.4. The fact that Anderson Taylor does not exercise any right or does not use any legal remedy does not constitute a waiver of that right or remedy.

17.5. The section headings in these terms of service Agreement are for convenience only and shall not be used in construing or interpreting any of its terms.

17.6. In the event that any of the provisions of the Agreement shall be found to be illegal, invalid, or unenforceable, the remaining provisions of the Agreement shall remain valid, enforceable and in full effect. Moreover, in the event of the nullity, invalidity or unenforceability of one or more provisions of the Agreement, the Licensee and Anderson Taylor undertake to negotiate in good faith in order to replace the provision concerned with a valid and enforceable provision that bears the closest resemblance to the intentions of the Agreement.

 

18. Applicable law and jurisdiction

18.1. The Agreement shall be solely governed (in form and substance) by and construed in accordance with the laws of Atlanta, Georgia.

18.2. Disputes arising from this Agreement shall be first arbitrated then brought to court in Atlanta, Georgia only if arbitration fails. 

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