TERMS OF SERVICE
This TERMS OF SERVICE ("Agreement") is made and entered into as of the date (the "Effective Date") the service(s) is/are activated, by and between Integra Solutions and Services Provider, Inc. ("INTEGRAS"), a Philippine business with principal address at 2nd Floor Launchpad Spaces, Commercenter, Filinvest Avenue, Filinvest Corporate City, Barangay Alabang, Muntinlupa City, 1771 Philippines and the client (SAAS-Client) ordering the service via the online store, with principal address duly specified in the online order. INTEGRAS and SAAS-Client are referred to individually as "Party" and collectively as the "Parties." SAAS-Client desires to obtain from INTEGRAS, and INTEGRAS desires to provide to SAAS-Client a cloud-based software as a service (SAAS-Subscription) subject to the terms and conditions of this Agreement. Now therefore in consideration of the mutual covenants herein and for good and valuable consideration, receipt of which is hereby acknowledged, the Parties agree
SAAS-Client desires to obtain from INTEGRAS, and INTEGRAS desires to provide to SAAS-Client a cloud-based software as a service (SAAS-Subscription) subject to the terms and conditions of this Agreement. Now therefore in consideration of the mutual covenants herein and for good and valuable consideration, receipt of which is hereby acknowledged, the Parties agree as follows.
- RIGHTS AND LICENSES
- All software and its corresponding licenses are property of INTEGRAS unless otherwise specified by existing licenses prior to the signing of this agreement.
- SAAS-Client hereby grants to INTEGRAS, a limited right to install, execute, copy, modify, display, and otherwise use all supporting software and all SAAS-Client materials, solely to perform the scope of work under this Agreement if and only to the extent allowed by the license agreements relating to the supporting software.
- SAAS-Client hereby grants to INTEGRAS, a limited right to use the SAAS-Client hardware solely in order to perform scope of work under this Agreement.
- Prior to INTEGRAS obtaining access to any software or hardware, INTEGRAS will obtain all consents, approvals, and agreements that may be required from third parties for the grant of rights and for INTEGRAS to perform the scope of work; provided however, that SAAS-Client the one required to obtain consents applicable to SAAS-Client. If INTEGRAS and/or SASS-Client does not obtain any required consent, the Parties will meet to mutually agree upon alternative approaches to permit INTEGRAS to perform the scope of work.
- Services – Subject to the terms and conditions of this Agreement, during the Term, INTEGRAS may provide SAAS-Client, and SAAS-Client may obtain from INTEGRAS, services as detailed in Exhibit A. During the Term, and for so long as INTEGRAS is not in breach of any material term or provision contained herein, or, if such breach exists, so long as INTEGRAS cures such breach within a reasonable time after notice thereof from SAAS-Client, INTEGRAS will be the exclusive provider for the specified services.
- Additional Services – Subject to the terms and conditions of this Agreement, during the Term INTEGRAS will provide to SAAS-Client additional services agreed upon by the Parties and fees for such additional services shall be agreed upon prior to commencing.
- Obsolescence – In the event specific services or systems provided hereunder become obsolete to the operations of SAAS-Client, the Parties may eliminate or replace such services or systems upon mutual agreement.
- Subcontracting – SAAS-Client understands that before and after the date of this Agreement, INTEGRAS may have contracted, and may in the future contract, with third parties to provide services in connection with all or any portion of the services to be provided under this Agreement. INTEGRAS reserves the right to continue to contract with third parties to provide the foregoing or to enter new contractual relationships for any of the foregoing; provided that no such subcontracting shall relieve INTEGRAS from its obligations hereunder.
- Performance – INTEGRAS will perform the implementation services in conformance with pre-determined agreements.
- SAAS-Client OBLIGATIONS
- INTEGRAS Policies – SAAS-Client will comply with INTEGRAS's reasonable policies, procedures, requirements, and restrictions with respect to SAAS-Client use of SAAS-Subscription.
- Cooperation – In order to enable INTEGRAS to perform the services, SAAS-Client and INTEGRAS will provide such mutual cooperation and assistance as reasonably requested by either Party. Such cooperation and assistance shall include providing to INTEGRAS in a timely manner answers to questions, information, technical consultation, and, where applicable, acceptances. INTEGRAS shall be excused from performing its obligations and meeting service levels to the extent INTEGRAS's performance is actually prevented or hindered by: SAAS-Client nonperformance; the failure by SAAS-Client personnel or any SAAS-Client third-party contractor to adequately perform its tasks related to the services; unreasonable, untimely, inaccurate, or incomplete information from SAAS-Client; the failure of any Hardware or Software owned by SAAS-Client; SAAS-Client agrees that, in connection with the foregoing, INTEGRAS shall be entitled to an extension of time to complete the services and, if applicable, an adjustment of applicable fees.
- Required Software and Hardware – Unless otherwise expressly agreed by the Parties in writing, SAAS-Client is responsible for procuring all existing third-party licenses, leases, support, service, maintenance and other agreements for any Required Software and Hardware.
- New Software and Hardware – Any new or additional Software or Hardware that INTEGRAS may require from time to time to perform the Services will be purchased, leased, or licensed by SAAS-Client in its own name.
- Facilities – During the Term, at such times that INTEGRAS personnel are co-located with SAAS-Client personnel, SAAS-Client will provide to INTEGRAS, office space and office related equipment and supplies that INTEGRAS may reasonably require to provide the Implementation Services. INTEGRAS agrees that it is subject to, and will comply with, any and all reasonable security and facility requirements generally applicable to third party contractors at the SAAS-Client Locations (including, at all times, the display of proper identification and limited or prohibited access to certain locations); provided that INTEGRAS is given prior notice of such requirements.
- BACKUP AND RESTORATION OF DATA
Unless otherwise agreed in writing, the backup and restoration of data shall be:
- Full daily backups of application instance in a separate data center from where the production (primary) server hosting the application instance is located.
- Provision and setup of a failover (secondary) server in case production/primary server undergoes maintenance or encounters a downtime. Restoration of daily backup into the failover server. Upon report of downtime, entire process shall be completed approximately 48 hours or depending on technically feasible timeframe which is affected by the size of data being restored.
- All restoration services are for the resolution of system-related downtime issues only. Restoration of backups other than this purpose is not allowed.
- CONTACT, COMMUNICATION, ESCALATION, ARBITRATION & PERFORMANCE
- Contact – The primary point of contact for the SAAS-client is the person who registered and ordered the application from the online store and shall be the Application Owner.
- Communication Medium – formal and official documented communication shall be done through the Online Ticketing system.
- Escalation – All matters regarding the services under this agreement shall be brought first to the attention of Application owner. It will be the responsibility of INTEGRAS and Application Owner to communicate and develop a resolution for issues and only those matters handled in compliance with communication medium will be addressed. In the event the entities are unable to mutually agree upon a resolution of any matter, the matter will be escalated for arbitration.
- Arbitration – If any dispute occurs between the parties arising out of or relating to this Agreement or its execution or performance, whether such dispute is in contract, tort or otherwise, it will be submitted to arbitration in accordance with Philippine laws.
- Service Performance – The Parties agree to the following service levels. 96.67% on INTEGRAS-controlled equipment such as production or failover server(s). Client may request a rebate of subscription at 3.33% of monthly rate for every full day (24 hours) of INTEGRAS downtime.
- FEES & PAYMENTS
- Fees – SAAS-Client will pay INTEGRAS regularly the SAAS-Subscription fees as follows or as per mutually agreed in writing by the Parties.
- Fees for Additional Services – For additional services which INTEGRAS provides to SAAS-Client and SAAS-Client agrees to purchase, SAAS-Client will pay INTEGRAS at the rates agreed upon by both parties.
- Expenses – In addition to the implementation services Fee, SAAS-Client will reimburse INTEGRAS for expenses that are incurred by INTEGRAS in connection with, and only to the extent necessary for, performance of services, provided that the Parties reasonably and mutually agree to such expenses.
- Taxes – The fees and charges of INTEGRAS under this Agreement exclude all applicable Philippine Taxes ("Taxes") unless otherwise stated, and SAAS-Client will be responsible for payment of all such Taxes and any related penalties and interest, arising from the payment of fees and charges to INTEGRAS, SAAS-Client will indemnify and hold INTEGRAS harmless from any and all damages, losses, liabilities, demands, awards, assessments, costs, penalties, and expenses, arising directly or indirectly from SAAS-Client failure to collect or pay any of the Taxes required to be collected or paid by SAAS-Client.
- Invoicing – INTEGRAS will invoice SAAS-Client for the SAAS-Subscription subscription fee. INTEGRAS will maintain complete and accurate records of the fees billed to SAAS-Client in accordance with generally accepted accounting principles.
Billing and Payment Schedule for New Activations:
Invoice Date: up to 5 business days upon order
Payment Due Date: up to 5 business days upon invoice
Activation: 1 business day upon payment verification
Billing and Payment Schedule for recurring subscriptions
Invoice Date: on or before the 5th day of the covered/current period
Payment Due Date: on or before the 15th day of the covered/current period
Suspension Due to Non-payment: 22nd day of the covered/current period
Data Destruction Due to Non-Payment: 30th day of the covered/current period
- CONFIDENTIALITY & ACCESS TO COMPUTER SYSTEMS
- The Parties acknowledge that any nonpublic information disclosed or provided by one Party to another Party in connection with this Agreement will be strictly confidential in nature unless otherwise agreed upon or as per instructions of a Philippine court of law.
- If either Party is given access to any equipment, computer, software, network, electronic files, or electronic data storage system owned or controlled by the other Party, the Party provided access shall limit such access and use solely to provide or receive, as applicable, services under this Agreement and shall not access or attempt to access any equipment, computer, software, network, electronic files, or electronic data storage system, other than those specifically required to provide or receive, as applicable, the services. Each Party shall limit such access to those individuals with a requirement to have such access in connection with this Agreement, shall advise the other Party in writing of the name of each such person who will be granted such access, and shall strictly follow all security rules and procedures of the other Party for use of that Party's electronic resources. All user identification numbers and passwords disclosed to a Party by the other Party and any nonpublic information of a Party obtained by the other Party as a result of their access to and use of any equipment, computers, software, networks, electronic files, and electronic data storage systems owned or controlled by the disclosing Party, shall be deemed to be, and shall be treated as, subject to this Agreement. Each Party agrees to cooperate with the other Party in the investigation of any apparent unauthorized access by the first Party to any equipment, computer, software, network, clean-room, electronic file, or electronic data storage systems owned or controlled by the other Party, or any apparent unauthorized release of nonpublic information by the Parties.
- LIMITATIONS OF LIABILITY
- Waiver – In no event shall either party be liable for any loss of profit, indirect, incidental, special, punitive, or consequential damages arising out of or relating to this agreement, even if advised of the possibility of such damages occurring.
- Liability Limit – In no event will the aggregate liability of either party under this agreement exceed the agreed fees already paid.
- REPRESENTATIONS AND WARRANTIES AND LIMITATIONS
- DISCLAIMER – Except and otherwise expressly provided, the system provided is under this agreement is provided “as is”. Neither party make any representations or warranties under this agreement, and each party disclaims any and all other representations and warranties, express or implied, including warranties of merchantability, fitness for a particular purpose, title and non-infringement.
- Each party represents that it has the requisite legal identity and authority to enter into this Agreement and to grant the rights granted herein, and that there are no outstanding rights, agreements, grants, encumbrances, obligations or restrictions that would prevent such party from performing under the terms of this Agreement.
- Each party represents that it will comply with all applicable Philippine laws and regulations in the performance of its obligations hereunder.
- TERM AND TERMINATION
- Term – The term of this Agreement (the "Term") will begin on the Effective Date and will continue unless earlier terminated as provided herein.
- Termination for Cause – Each Party may terminate this Agreement in its entirety upon written notice if the other Party breaches any material term of this Agreement and fails to cure such breach within mutually agreed period after receipt by the breaching Party of written notice from the non-breaching Party describing such breach.
- Actions Upon Termination or Expiration – Upon the expiration of this Agreement or its termination by either Party for any reason, all data stored are a property of the SAAAS-Client and SAAS-Client may export the data stored on INTEGRAS servers using the built-in data export tool of the from within the application for a maximum period of 30 days after termination/expiration subscription. INTEGRAS shall ensure destruction of data after this date.
- Inaction of a party to termination notice – Upon notice of termination of this agreement by either party, such termination is considered accepted and concluded thirty (30) calendar days after the stated of termination even if no acceptance or action has been provided by the party receiving the termination notice.
- Notices – Except as otherwise provided, all notices that are permitted or required under this Agreement shall be in writing, in English, and shall be deemed given when delivered by postal mail, email, or through the INTEGRAS Customer Portal.
- Choice of Law; Consent to Jurisdiction – This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the Republic of the Philippines (without giving effect to principles of conflicts of laws).
- Force Majeure – Neither Party will be liable for delays or failure to perform the Services if due to any cause or conditions beyond its reasonable control, including delays or failures due to acts of God, natural disasters, acts of civil or military authority, fire, flood, earthquake, strikes, wars, or national/regional utility disruptions (shortage of power).
- Assignment – No Party to this Agreement shall be permitted to assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Party
- Entire Agreement; Amendment; Waivers – This Agreement, together with all Exhibits hereto, constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties. No supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the Party to be bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
- Invalidity – In the event that any one or more of the provisions contained in this Agreement or in any other instrument referred to herein, is, for any reason, held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or any other such instrument and the invalid, illegal or unenforceable provision shall be deemed modified so as to be valid, legal and enforceable to the maximum extent allowed under applicable law.
- Construction – The headings of the Sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. All Section and Exhibit references in this Agreement are to Sections and Exhibits, respectively, of or to this Agreement unless specified otherwise. Unless expressly stated otherwise, when used in this Agreement the word "including" means "including but not limited to." The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise or disfavor any Party by virtue of the authorship of any provisions of this Agreement.
- Parties Obligated and Benefited – This Agreement will be binding upon the Parties hereto and their respective permitted assigns and successors in interest and will inure solely to the benefit of such Parties and their respective permitted assigns and successors in interest, and no other Person.
- Relationship – Nothing in this Agreement shall be deemed or construed as creating a joint venture or partnership between the Parties. Neither Party is by virtue of this Agreement authorized as an agent, employee, or legal representative of the other Party, and the relationship of the Parties is, and at all times will continue to be, that of independent contractors
- Counterparts – This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which will constitute one and the same agreement.
- Execution – This Agreement may be executed by facsimile signatures and such signature will be deemed binding for all purposes of this Agreement, without delivery of an original signature being thereafter required.
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