IMPORTANT: READ CAREFULLY. USE OF ACCENTURE’S ADAPT SOFTWARE BY BUSINESS, GOVERNMENTAL, AND OTHER LEGAL ENTITIES IS SUBJECT TO THE FOLLOWING GENERAL TERMS AND CONDITIONS. ADAPT IS NOT AVAILABLE FOR PERSONAL USE, HOME USE, AND/OR CONSUMER USE.
ACCENTURE WILL PROVIDE THE ADAPT SOFTWARE AND RELATED SUPPORT SERVICES TO CLIENT (“CLIENT”) AS SPECIFIED IN A SEPARATELY SIGNED SERVICE ORDER (“SERVICE ORDER”) UNDER THE FOLLOWING GENERAL TERMS AND CONDITIONS (COLLECTIVELY THE “AGREEMENT”).
1 CLIENT’S RIGHTS AND OBLIGATIONS
1.1 Subject to Client’s execution of a separate Service Order, and payment of the fees specified in and compliance with the terms and conditions of this Agreement and the relevant Service Order, Accenture will grant Client a non-exclusive, non-transferable right during the term of the applicable Service Order to permit its Authorized Users to access and use the SaaS Services (as defined in Exhibit A) for the Permitted Purpose only.
1.2 Client agrees that, unless explicitly authorized pursuant to the Permitted Purpose, it shall not license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the SaaS Services by making them available for access or use by any third party (except Authorized Users), including by means of operating a service bureau, outsourcing or time-sharing service.
1.3 Client shall be solely responsible for (i) determining the suitability of the SaaS Services for its purposes and those of its Authorized Users and (ii) ensuring that Client’s or its Authorized Users’ use of the SaaS Services shall not exceed any restrictions contained in this Agreement or the applicable Service Order.
1.4 Client is responsible for all use of the SaaS Services by those who have access to them through Client’s credential, and for ensuring that its Authorized Users do not circumvent or disclose any usernames, passwords or other access credentials or authentication details, or interfere with or disrupt any other security control of the SaaS Services.
1.5 Client shall maintain commercially reasonable security standards for its and its Authorized Users’ use of the SaaS Services. Specifically, Client will use good industry practice virus protection software, and other customary procedures to screen any Client Content to avoid introducing any Virus or other malicious files or other harmful code that could disrupt the proper operation of the systems used in the provision of the SaaS Services. Client also agrees that it shall use all reasonable endeavors to ensure that its Authorized Users do not upload or distribute files that contain Viruses, or do anything else to disrupt or attempt to disrupt, the systems and networks used for the provision of the SaaS Services. If Client learns or suspects that its Authorized Users have introduced a Virus, Client will notify Accenture and cooperate in mitigating the effects of such Virus.
1.6 Client shall be solely responsible for the acts and omissions of its Authorized Users as if they were the acts and omissions of Client, and for ensuring that anyone who uses the SaaS Services does so in accordance with the terms and conditions of this Agreement and the applicable Service Order. In particular, the Client agrees that it shall not, and that it shall ensure that its Authorized Users do not: (i) access or use the SaaS Services to host or transmit any content, data or information that is illegal or which infringes any third party’s rights, such as intellectual property rights or right of privacy, or which otherwise violates any applicable laws; (ii) copy, translate, make derivative works, disassemble, decompile, reverse engineer or otherwise attempt to discover the source code or underlying ideas or algorithms embodied in the software applications or other systems used for the provision of the SaaS Services (including the IaaS), unless expressly permitted under any applicable laws, or remove any titles or trademarks, copyrights or restricted rights notices in the systems, software and other materials used in the provision of SaaS Services; or (iii) access or use the SaaS Services for the purpose of building competitive products or services by copying its features or user interface or by allowing a direct competitor of Accenture to access or use the SaaS Services.
1.7 Client will notify Accenture immediately if it becomes aware of any breach or threatened breach of the terms of this Section 1, or of any breach or threatened breach of security including any attempt by a third party to gain unauthorized access to the systems used for the provision of the SaaS Services.
1.8 Client acknowledges and agrees that it is responsible for obtaining and maintaining all hardware, software, communications equipment and network connections necessary to access and use the SaaS Services, and for paying any applicable third-party fees and charges incurred while accessing and using the SaaS Services.
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2 ACCENTURE’S RIGHTS AND OBLIGATIONS
2.1 Accenture shall provide the SaaS Services in accordance with an executed Service Order. Accenture will also provide Support (as defined in the Service Order).
2.2 In providing the SaaS Services Accenture will use reasonable and appropriate technical and organizational security measures intended to safeguard Client Content against accidental, unauthorized or unlawful access, loss, damage or destruction.
2.3 Accenture may need to apply updates or make changes to the SaaS Services that it is providing pursuant to any Service Order, provided always that Accenture shall not be entitled to apply such updates or other changes in a manner that would make the SaaS Services materially non-conforming with the applicable service descriptions, or otherwise materially diminish the scope or the quality of the service provided, unless such changes are necessary for Accenture to comply with any applicable laws. Accenture will notify the Client reasonably in advance of any planned changes to the SaaS Services that have any material impact on Client’s access to or use thereof.
2.4 Client acknowledges and agrees that Accenture shall be permitted to monitor the Client’s and its Authorized Users’ access and usage of the SaaS Services limited solely for the purposes of verifying Client’s compliance with the terms of this Agreement and the applicable Service Order.
2.5 Client hereby acknowledges, accepts and agrees that Accenture may have to suspend Client’s and/or its Authorized Users’ right to access or use all or any portion of the SaaS Services, or remove any relevant Client Content as described below: (i) where such access or use, or any Client Content (x) poses a security risk to or may otherwise adversely impact the SaaS Services or (y) infringes or otherwise violates the rights or other interests of a third party, entails illegal or otherwise prohibited content or activities, or otherwise subjects Accenture to a potential liability; (ii) where Client has materially breached its obligations under Section 4 and, within 10 business days of Accenture’s written notice thereof, fails to remedy such breach; or (iii) where Accenture is required to do so under any applicable laws, or any court’s or governmental body’s order.
2.6 When allowed under the applicable laws and if otherwise reasonable under the circumstances (as determined by Accenture in its discretion), Accenture shall provide Client with a written notice prior to such suspension, and an opportunity to take steps to avoid any such suspension. Any suspension of Client’s or its Authorized Users’ right to access or use the SaaS Services shall not release the Client from its obligations under this Agreement and any Service Order, including any obligation of paying the fees. Accenture’s suspension right is in addition to Accenture’s right to terminate this Agreement or any Service Order pursuant to Section 9.
3 CLIENT CONTENT
3.1 Client (and Client’s licensors, where applicable) own all right, title and interest in and to the Client Content.
3.2 Client has obtained, and during the Term will obtain, all Consents required under applicable law prior to Client Content being entered into or processed by the SaaS Services. In particular, Client has collected and shall maintain and handle all Personal Information contained in Client Content in compliance with all applicable data privacy and protection laws, rules and regulations.
3.3 Client authorizes Accenture to process its Personal Information in accordance with Client’s written instructions as set out in this Agreement and the applicable Service Order. Client has satisfied itself that Accenture and any applicable Cloud Vendor have in place appropriate technical and organizational measures to protect Client Content (including Personal Information) processed on behalf of Client from unauthorized use or access, accidental loss, damage, destruction, theft or disclosure. If the SaaS Services involve the processing of Client Personal Information, then additional data processing terms shall apply. If the SaaS Services involve the processing of Protected Health Information (as defined in 45 CFR 160.103, the U.S. Health Insurance Portability and Accountability Act of 1996 (HIPAA)), a Business Associate Agreement (BAA) or its equivalent shall be executed and attached as an Exhibit to the applicable Service Order.
3.4 Client grants to Accenture the nonexclusive right to host, store, process, modify and transfer the Client Content for the purposes of Accenture’s provision of, and Client’s use of, the SaaS Services as set forth in this Agreement, and Accenture’s improvement of the SaaS Services incidental to such use. Accenture agrees to destroy any Client Content in accordance with Section 9.7 of this Agreement. Accenture may: (i) use usage patterns, trends, statistics, and other data derived from use of the SaaS Services (but not Client Content itself) for purposes of developing or improving the SaaS Services and other Accenture products and services; and (ii) provide information to the Cloud Vendor regarding
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Client’s use of the IaaS, subject to the Cloud Vendor’s obligations of confidentiality, for Cloud Vendor’s use to improve its cloud infrastructure services.
3.5 Client shall have the ability to access its Client Content hosted in the SaaS Services at any time during the term of the applicable Service Order. Client may export and retrieve its Client Content during such Service Order term, subject to any technical limitations in the SaaS Services or Client’s and its Authorized Users’ hardware and software, including factors such as (i) the size of Client’s instance of the SaaS Services; and (ii) the frequency and/or timing of the export and retrieval.
4 FEES, PAYMENTS AND TAXES
Accenture shall invoice and Client shall pay the fees specified in the applicable Service Order. Fees are stated exclusive of all applicable duties, tariffs, and taxes. Unless otherwise specified in a Service Order, fees will be due and payable within thirty (30) days of Accenture’s invoice. Should any invoice (excluding disputed amounts) become overdue by more than thirty (30) days, interest will be charged at a rate of 1% per month or the highest rate allowed by law, whichever is less from the original invoice due date, until the overdue balance is settled. Any taxes arising out of this Agreement other than those on Accenture’s net income will be Client’s responsibility. Accenture will pay any taxes remitted to it by Client to the applicable taxing authority when due. The Parties agree to cooperate to help enable each party to accurately determine and reduce its own tax liability and to minimize any potential liability to the extent legally permissible. All amounts payable under this Agreement will be made without set-off or counterclaim, and without any deduction or withholding.
5 ACCENTURE'S INTELLECTUAL PROPERTY RIGHTS
Accenture and its licensors, where applicable, own all right, title and interest, including all Intellectual Property Rights, in and to the systems, software and other content and materials used in the provision of the SaaS Services, and to any suggestions, enhancement requests, feedback, or recommendations provided by Client or any other party relating thereto. Client may only use the SaaS Services and Accenture’s Intellectual Property Rights relating thereto as expressly permitted herein. The Accenture name, the Accenture logo, and the product names associated with the SaaS Services are trademarks of Accenture or third parties, and no right or license is granted to Client to use them.
6 WARRANTIES AND EXCLUSIONS
6.1 Accenture warrants that the SaaS Services provided to Client pursuant to this Agreement will comply in all material respects with the Documentation identified in the applicable Service Order. This warranty shall not apply where: (i) the Client’s or any Authorized User's access or use of the SaaS Services is not in compliance with this Agreement or with Accenture’s instructions; (ii) modification or alteration of the SaaS Services or any systems, software or other content or materials embodied therein is made by any Party other than Accenture; or (iii) the SaaS Services are being provided free of charge, or as a trial, pre-release or as a beta release.
6.2 Client shall provide Accenture with prompt written notice of any non-conformity of the SaaS Services specified in Section 6.1, sufficiently describing such non-conformity, no later than within thirty (30) days of the appearance or Client’s discovery of such non-conformity.
6.3 In such event, Accenture will use commercially reasonable efforts to correct any such non-conformity. In the event Accenture is unable to correct such non-conformity by exercising commercially reasonable efforts for a reasonable period, either Party may terminate the relevant Service Order concerning the non-conforming SaaS Service(s) on written notice to the other Party in which case as Client’s sole and exclusive remedy, Accenture will provide a pro-rated refund of any pre-paid fees for periods after the effective date of termination.
6.4 Accenture shall provide the SaaS Services by using good industry practice virus protection software to detect and mitigate Viruses in the SaaS Services (separate from the Client Content) that could disrupt the proper operation of the systems used in the provision of the SaaS Services.
6.5 Disclaimer. THE WARRANTIES SET FORTH IN THIS SECTION 6 ARE THE ONLY WARRANTIES CONCERNING THE SAAS SERVICES OR THIS AGREEMENT MADE BY ACCENTURE, AND ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SAAS SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING CLIENT CONTENT OR THIRD PARTY COMPONENTS OR CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, AND INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A
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PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. EACH PARTY, ITS AFFILIATES AND ITS LICENSORS DISCLAIM ALL, AND THE OTHER PARTY AGREES THAT IT IS NOT ENTITLED TO ANY EQUITABLE OR IMPLIED INDEMNITIES. THESE DISCLAIMERS SHALL ONLY APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
7 INDEMNITY
7.1 Accenture will defend Client, its parents, subsidiaries, affiliates, successors, and their directors, officers, employees, agents and representatives (its “Indemnified Parties”) from and against any and all third party claims, demands, lawsuits, judgments, fines, and penalties (including interest thereon and court costs) caused by a claim brought against Client by any third party (that is not an Indemnified Party) that Client’s use of the SaaS Services, in accordance with the terms and conditions of the Agreement and the applicable Service Order, constitutes a direct infringement of a patent issued in the United States as of the Effective Date, copyright, or trade secret of any third party.
7.2 Accenture will have no obligations or liability under Section 7.1 for any claims to the extent arising from:
7.2.1 Client Content;
7.2.2 Client’s or any Authorized User’s use of the SaaS Services after Accenture has notified Client to discontinue such use and Client have been afforded a reasonable opportunity to discontinue such use;
7.2.3 any unauthorized modification or unauthorized use of the SaaS Services where infringement or misappropriation would not have occurred but for such unauthorized modification or unauthorized use;
7.2.4 any use of the SaaS Services, or any other act, by Client or an Authorized User, that is in breach of this Agreement, where the infringement or misappropriation would not have occurred but for the breach;
7.2.5 any combination(s) of the SaaS Services with any other product, service, software, content, data or method not supplied by Accenture; or
7.2.6 a free (no fee) or trial license of the SaaS Services.
7.3 If any portion of the SaaS Services are, or in Accenture’s opinion are likely to be, held to be infringing, Accenture may choose (at its election and expense) to: (a) procure the rights to use the item alleged to be infringing; (b) replace the alleged infringing portion with a non-infringing equivalent; or (c) modify the alleged infringing portion to make it non-infringing while still providing substantially the same level of functionality. If Accenture determines the actions from Section 7.3 (a) to (c) are not commercially reasonable, Accenture may immediately terminate Client’s access to the SaaS Services.
7.4 Client shall defend (at its sole expense) Accenture and its Indemnified Parties and licensors from and against any and all third party claims, demands, lawsuits, judgments, fines, and penalties (including interest thereon and court costs) caused by a claim brought against Accenture by any third party (that is not an Indemnified Party or licensor) arising from or related to (a) any use of SaaS Services by Client or its Authorized Users in violation of any applicable law or regulation; or (b) any allegation that the Client Content violates, infringes or misappropriates the rights of a third party; or (c) Client’s or its Authorized Users’ use of the SaaS Services or other act in violation of this Agreement or the relevant Service Order. The foregoing shall apply regardless of whether such damage is caused by the conduct of Client and/or its Authorized Users or by the conduct of a third party using Client's or an Authorized User's access credentials where Client has negligently made the credentials available or chosen credentials that are easy to hack into.
7.5 Client will have no obligations of liability under Section 7.4 for any claims arising from:
7.6.1 Client Content after Client has notified Accenture to delete the Client Content from the SaaS and Accenture has been afforded a reasonable opportunity to do so; or
7.6.2 any unauthorized access or use of the Client Content by Accenture that is in breach of this Agreement, where the infringement or misappropriation would not have occurred but for such breach.
7.6 In connection with any third party claims pursuant to Section 7.1 or 7.4, the indemnified Party (on behalf of itself or any Indemnified Party) will (a) give the indemnifying Party prompt written notice of the claim; (b) reasonably cooperate with the indemnifying Party (at the indemnifying Party’s expense) in connection with the defense and settlement of such claim, and (c) grant the indemnifying Party sole control of the defense and settlement of the claim, except that
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the indemnifying Party may not consent to the entry of any judgment or enter into any settlement with respect to the claim without the indemnified Party’s prior written consent unless the settlement or judgment is purely financial, is paid entirely by the indemnifying Party, is confidential, does not require the indemnified Party to admit to any fault or wrongdoing, and fully releases the indemnified Party from any and all further claims or causes of action relating to the subject matter of the claim. The non-controlling Party may, at its expense, participate in the defense and settlement of the claim with counsel of its own choosing. If the indemnifying Party fails to assume control within 30 days of written notice of the claim, the indemnified Party may assume control of the defense of the claim
7.7 Exclusive Remedy. SECTION 7.1 CONSTITUTES CLIENT’S SOLE AND EXCLUSIVE REMEDY AND ACCENTURE’S (AND ITS AFFILIATES’) ENTIRE OBLIGATION TO CLIENT WITH RESPECT TO ANY CLAIM THAT THE SAAS SERVICES INFRINGE OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
8 LIMITATION OF LIABILITY
8.1 EXCEPT FOR (I) BREACH OF ITS OBLIGATIONS UNDER SECTION 4 OR 7, (II) A BREACH OF ACCENTURE’S INTELLECTUAL PROPERTY RIGHTS UNDER SECTION 5, OR (III) DAMAGES RESULTING FROM DEATH OR BODILY INJURY ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR FROM FRAUD OR FRAUDULENT MISREPRESENTATION, UNDER NO CIRCUMSTANCES AND REGARDLESS OF THE NATURE OF ANY CLAIM SHALL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES OR ACCENTURE’S LICENSORS) BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY UNDER THIS AGREEMENT FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE FEES PAID UNDER A SERVICE ORDER FOR THE APPLICABLE SAAS SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE INCIDENT GIVING RISE TO LIABILITY.
8.2 TO THE EXTENT PERMITTED BY LAW, EXCEPT FOR A BREACH OF ACCENTURE’S INTELLECTUAL PROPERTY RIGHTS UNDER SECTION 5, NEITHER PARTY NOR ANY OF EITHER PARTY’S RESPECTIVE AFFILIATES WILL BE LIABLE TO THE OTHER PARTY UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES; BUSINESS INTERRUPTION, LOSS OF PROFITS OR SAVINGS, REVENUES, OR GOODWILL; LOSS OR CORRUPTION OF DATA; UNAVAILABILITY OF ANY OR ALL OF THE SAAS SERVICES; INVESTMENTS, EXPENDITURES OR COMMITMENTS RELATED TO USE OF OR ACCESS TO THE SAAS SERVICES; COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; UNAUTHORIZED ACCESS TO, COMPROMISE, ALTERATION OR LOSS OF CLIENT CONTENT OR BUSINESS INFORMATION; OR COST OF REPLACEMENT OR RESTORATION OF ANY LOST OR ALTERED CLIENT CONTENT.
8.3 The Parties acknowledge that the limitations on liability set out in this Section 8 are essential terms of this Agreement, and the Parties would not have entered this Agreement without them.
9 TERM AND TERMINATION
9.1 The term of this Agreement will commence on the Effective Date and will continue until terminated by either Party pursuant to this Section 9. The term of any Service Order shall be agreed in the Service Order itself, and the terms and conditions of this Agreement shall survive and remain in force to govern any Service Order the term of which exceeds any termination of this Agreement.
9.2 Either Party may terminate this Agreement (but not a Service Order) for convenience upon sixty (60) days written notice to the other Party. For the avoidance of doubt, either Party may only terminate a Service Order in accordance with the terms of the Service Order or as expressly provided for in this Agreement.
9.3 Either Party may terminate this Agreement and/or any Service Order upon written notice if the other Party ceases its business operations or becomes subject to insolvency proceedings or any similar or equivalent process in any jurisdiction, and the proceedings are not dismissed within ninety (90) days, or otherwise becomes generally unable to meet its obligations under this Agreement and/or the Service Order.
9.4 In addition to any other remedies that a Party may have at Law, in equity, or under this Agreement, a Party may terminate this Agreement and/or any Service Order upon thirty(30) days' advance written notice to the other Party if the other Party commits any material breach of this Agreement and/or any Service Order and fails to cure such default (if curable) within the thirty (30) day period, including if there has been any such act or omission by Client or any
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Authorized User that has given Accenture the right to suspend the provision of SaaS Services in accordance with Section 2.6.
9.5 Accenture may also terminate this Agreement and/or any Service Order without liability upon thirty (30) days’ notice to Client or any Authorized User: (i) in the event where an underlying contract between Accenture and the Cloud Vendor concerning the provision of the IaaS terminates, or (ii) if termination of the Agreement and/or any Service Order is necessary to comply with applicable law or binding requests of governmental entities.
9.6 Upon the effective date of expiration or termination of a Service Order, Client shall cease Client’s and its Authorized Users’ access to and use of the SaaS Services.
9.7 If agreed in the applicable Service Order, Accenture will provide Client with the ability to retrieve Client Content after the expiration or termination of such Service Order for a limited period of time, in which case Client will cover the costs of the data storage unless otherwise agreed in the Service Order. Otherwise, Accenture will destroy, procure the destruction of, or otherwise dispose of any Client Content in its possession or in possession of a Cloud Vendor (including any data back-ups) upon expiration or termination of the applicable Service Order.
9.8 If so mutually agreed in the Service Order, Accenture shall provide to Client reasonable cooperation and assistance to facilitate the orderly wind down of the usage of the SaaS Services and/or to assist Client to transition to another provider. Client will pay Accenture for such assistance at Accenture's then-current time and materials rates for the applicable services or as otherwise mutually agreed by Client and Accenture. If the termination results from a breach of this Agreement by Client, Accenture may invoice Client in advance for all transition assistance services and, if so invoiced, Client will pay in advance.
10 CONFIDENTIALITY
10.1 Each Party agrees that it will use the other Party’s Confidential Information only to the extent reasonably necessary for purposes of this Agreement or a Service Order, and to protect such Confidential Information in the same manner that it protects its own similar confidential information, but in no event using less than a reasonable standard of care. Access to the Confidential Information will be restricted to Accenture and Client personnel (including such personnel employed by their affiliates) and subcontractors with a need to use such Confidential Information pursuant to the parties’ rights and obligations under this Agreement, provided such parties are bound by substantially similar obligations of confidentiality and are not listed as a competitor in the applicable Service Order. Accenture may retain and use Confidential Information relevant to its business purposes (including to provide or enhance its services) so long as its use of such Information is in an aggregated and anonymized or pseudonymized manner. Nothing in this Agreement will prohibit or limit either party’s use of Confidential Information (i) previously known to it without an obligation not to disclose such information, (ii) independently developed by or for it without use of Confidential Information, (iii) acquired by it from a third party which was not, to the receiver’s knowledge, under an obligation not to disclose such information, or (iv) which is or becomes publicly available through no breach of this Agreement. Client shall not disclose the terms and conditions of this Agreement or the pricing contained herein to any third party unless otherwise agreed by the Parties.
11 ADDITIONAL TERMS
11.1 Compliance with Laws. Accenture will comply with all laws applicable to it and its business in providing the SaaS Services, and Client will comply with all laws applicable to it and its business in providing the Client Content and in using the SaaS Services and ensure that the way that it and its Authorized Users access and use the SaaS Services complies with any applicable laws. Each Party will comply with relevant data privacy laws to the extent applicable to such Party in its role with respect to the processing of Client Personal Information under this Agreement. Each Party will comply with all export control and economic sanctions laws applicable to its performance under this Agreement. Client agrees that Client will and will ensure that Authorized Users do not use the SaaS Services in or in relation to any activities involving a country subject to comprehensive economic sanctions (including without limitation Cuba, Iran, North Korea, Sudan, Syria, Crimea, Donetsk People’s Republic (DNR) or Luhansk People’s Republic (LNR) regions in Ukraine), or involving a Party in violation of such applicable trade control laws, or that require government authorization, without first obtaining the informed consent of Accenture and the required authorization. For the avoidance of doubt, Client shall not grant access to the SaaS Services to any individual, entity or organization which
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is subject to trade sanctions or embargos by the United States or any applicable jurisdiction, including any individual, entity or organization which is listed on the OFAC Specially Designated Nationals List from time to time.
11.2 Notices. Unless expressly stated otherwise in this Agreement, any notice or other communication provided under this Agreement will be in writing, addressed to such party at the address set forth herein, or upon electronic delivery by confirmed means.
11.3 Disputes, Governing Law and Jurisdiction. The Parties will make good faith efforts to first resolve internally within 30 days any dispute, including over an invoice, in connection with this Agreement by escalating it to higher levels of management. If Client withholds an amount more than sixty days Accenture will be permitted to suspend performance until such time as the matter in dispute is resolved. The laws of [the State of Illinois and federal laws of the United States] will govern the construction, validity and operation of this Agreement and the performance of all obligations hereunder without regard for Illinois’ choice of law provisions. The courts of [Chicago, Illinois] shall have exclusive jurisdiction in relation to any dispute or matter arising under or in connection with this Agreement.
11.4 Force Majeure. Except for payment obligations, neither party will be liable for any delays or failures to perform due to causes beyond that party’s reasonable control (including a force majeure event).
11.5 Survival. The provisions of Sections 5, 6.5, 7, 8, 9, 10, and 11, and any other Sections which by their nature are intended to survive, will survive the termination or expiration of this Agreement.
11.6 Assignment. Client may not assign this Agreement or delegate or sublicense any of Client’s rights or obligations hereunder, including by operation of law, without the prior written consent of Accenture and any attempt to do so in violation of this provision will be null and void.
11.7 Variation. Except as otherwise expressly provided to the contrary in this Agreement, this Agreement may only be changed, modified or expanded by a writing signed by both Parties.
11.8 Construction of the Agreement. Each executed Service Order constitutes a separate and binding agreement, incorporating the terms and conditions of this Agreement. This Agreement, including its Service Orders, sets forth the entire understanding between two sophisticated business entities with legal counsel as to its subject and supersedes all prior agreements, conditions, warranties, representations, arrangements and communications, whether oral or written, and whether with or by Accenture, any of its affiliates, or any of their employees, officers, directors, agents or shareholders. Each party acknowledges that it entered into this Agreement solely based on the agreements and representations contained herein, and has not relied upon any representations, warranties, promises, or inducements of any kind, whether oral or written, and from any source. If a court of competent jurisdiction finds any term of this Agreement to be invalid, illegal or otherwise unenforceable, such term or provision will not affect the other terms of this Agreement and will be deemed modified to the extent necessary, in the court’s opinion, to render such term enforceable while preserving to the fullest extent permissible the intent and agreements of the parties set forth in this Agreement. No waiver or modification of any provision of this Agreement, including any underlying Schedule, will be effective unless it is in writing and signed by the party against which it is sought to be enforced. The delay or failure by either party to exercise or enforce any of its rights under this Agreement is not a waiver of that party’s right to later enforce those rights, nor will any single or partial exercise of any such right preclude any other or further exercise of these rights or any other right. There are no third-party beneficiaries to this Agreement except for Accenture’s licensors. The capitalized terms as used in this Agreement have the meanings set out in the body of this Agreement or in Exhibit A (Definitions). If there is a conflict between the terms and conditions of this Agreement and those of any Service Order, then the following order of precedence shall apply: (i) the Service Order; (ii) any schedules or attachments to the Service Order and any other documents incorporated thereto by reference; (iii) the terms and conditions of this Agreement; and (iv) any exhibits to this Agreement. Except as a Service Order may otherwise expressly provide, each Service Order will be a complete statement of its subject matter and will supplement and modify the terms and conditions of this Agreement for purposes of that Service Order only.
11.9 Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto.
11.10 Audit Rights. Upon request by Accenture, Client shall audit and certify to Accenture that its use of the SaaS Services complies with the Agreement. Accenture reserves the right once every twelve months, upon reasonable prior notice
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and during normal business hours, to audit usage of the SaaS Services to verify Client’s compliance with this Agreement. Accenture may repeat the audit if non-compliance is found.
11.11 Counterparts. This Agreement may be executed in any number of counterparts and executed by facsimile or by other electronic communication as agreed upon by the Parties, such execution to be considered an original for all purposes, and all of which together will constitute one and the same instrument, notwithstanding that the Parties may not both be signatories to the original or same counterpart.
11.12 Reference Materials. Following execution of a Service Order, Accenture may prepare and distribute Reference Materials. Content of the Reference Materials will be jointly agreed upon prior to public distribution. Accenture may republish Reference Materials in Accenture marketing mediums including, but not limited to Accenture websites, collateral, and newsletters for 1 year following joint approval of such Reference Material content. Client grants to Accenture for the term of this Agreement a limited non-exclusive right to use Client’s name and trademarks in promotional materials (including Reference Materials and Accenture’s website) to identify Client as an authorized user of the SaaS Services.
11.13 Business Contact Information. Each party consents to the other party using its Business Contact Information for contract management, payment processing, service offering, and business development purposes related to this Agreement and such other purposes as set out in the using party’s global data privacy policy (copies of which shall be made available upon request). For such purposes, and notwithstanding anything else set forth in this Agreement with respect to Client Personal Information in general, each party shall be considered a data controller with respect to the other party’s Business Contact Information and shall be entitled to transfer such information to any country where such party’s global organization operates.
EXHIBIT A
DEFINITIONS
“Authorized User” means any individual or entity that, directly or indirectly through another Authorized User, accesses or uses the SaaS Services;
“Business Contact Information” means the names, mailing addresses, email addresses, and phone numbers of a party’s personnel, officers and directors and, with respect to Client, such information regarding Client’s vendors and customers that Accenture may have access to in maintaining the parties’ business relationship.
“Cloud Vendor” means the relevant cloud service provider, providing the IaaS;
“Client Content” means any content, materials, data and information, including Personal Information that Client or its Authorized Users enter into the SaaS Services or is otherwise uploaded by or on behalf of Client to the SaaS Services. Client Content shall not include any component of the SaaS Services or material or data provided by or on behalf of Accenture or its licensors.
Client Personal Information” means Personal Information provided to Accenture by or on behalf of Client in connection with this Agreement, in the form of Client Content;
“Confidential Information” means the SaaS Service and any information that relates to a party’s (or to Cloud Vendor's) past, present, or future research, development, business activities, products, services, and technical knowledge, which is identified by the discloser as confidential or that would be understood to be confidential by a reasonable person under the circumstances. For the purposes of this Agreement, the term “Confidential Information” does not include Client Content;
“Consent” means (1) all consents, permissions, notices and authorizations necessary for Accenture to provide the SaaS Services, including from Client employees or third parties; (2) valid consents from or notices to applicable individuals whose data is processed by the SaaS Service); and (3) required authorizations from regulatory authorities, employee representative bodies or other applicable third parties;
“Effective Date” means the date first written above;
“Documentation” means the product documentation made available with the SaaS Services.
“IaaS” means the infrastructure-as-a-service provided by a Cloud Vendor on which the SaaS Services are hosted or is otherwise utilized in the provision of the SaaS Services by Accenture;
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Accenture ADAPT - General Terms and Conditions
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature;
“Permitted Purpose” has the meaning given to such term in the applicable Service Order. If the applicable Service Order does not define Permitted Purpose, it will mean Client’s internal business purposes;
“Personal Information” means data which names or identifies a natural person including, without limitation: (a) data that is explicitly defined as a regulated category of data under data privacy laws applicable to Client; (b) non-public personal data, such as national identification number, passport number, social security number, driver’s license number; (c) health or medical information, such as insurance information, medical prognosis, diagnosis information or genetic information; (d) financial information; and/or (e) sensitive personal data, such as race, religion, marital status, disability, or sexuality;
“Reference Materials” means an Accenture press release announcing the commitment Client has made to the SaaS Services and a client story discussing business success Client has achieved with the SaaS Services, including without limitation an executive quote provided by Client detailing why Client chose the SaaS Services.
“SaaS Services” means the ADAPT software, a hosted solution made available by Accenture for Client’s access and use on a subscription basis, as detailed in the applicable Service Order. The term “SaaS Services” includes any modifications, enhancements, additions, extensions, translations and derivative works thereof. The SaaS Services do not include Client Content or any Client-provided third party software;
“Service Order” means the documents referenced in Section 1.2, and its Schedules, and any other documents incorporated by reference herein, together with any amendments thereto duly executed by the Parties;
“Support” has the meaning set forth in the applicable Service Order;
"Virus" means any item, software, device or code which is intended by any person to, or which is likely to, or which may (a) impair the operation of any software or computer systems; (b) cause loss of, or corruption or damage to any software or computer systems or data; (c) prevent access to or allow unauthorised access to any software or computer system or data; or (d) damage the reputation of the Client and / or Accenture, including any computer virus, Trojan horse, worm, software bomb, authorization key, license control utility or software lock