SOFTWARE AS A SERVICE AGREEMENT
THIS AGREEMENT is made
BETWEEN:
(1) UNIVER, a company incorporated in United Arab Emirates and
(2) The Customer organization or individual (“Customer ”) (collectively referred to as the “ Parties
” and each a “ Party ”)
WHEREAS:
(a) UNIVER has developed and owns the System.
(b) The Parties wish to enter into this Agreement to govern the usage of the System and related
services to be provided by UNIVER to the Customer
NOW IT IS AGREED as follows:
1. DEFINITIONS
1.1
In this Agreement, unless the context otherwise requires, the following expression have the
following meanings:
“Intellectual Property Rights”: means all vested, contingent and/or future intellectual property
rights
including but not limited to copyright, trademarks, service marks, design rights (whether registered
or
unregistered), patents, know-how, trade secrets, inventions, get-up, database rights and any
application
for the protection or registration or these rights and all renewals and extensions thereof existing
in any
part of the world whether now known or in the future created to which UNIVER may be
entitled
Fee : the fee payable by the Customer to UNIVER or the Use Right
System : means the software service which UNIVER is providing to the Customer including any
Updates
relating thereto that may be provided hereunder or thereunder and any derivative works of the
foregoing.
Particulars of the System
System Administrators : has the meaning ascribed to it in Clause 2.3
Use Right: the right to use granted by UNIVER pursuant to Clause 2.1
$: the lawful currency of the United States of America
User: means such person to whom the Customer has granted access to use the System, regardless of
whether the User actually accesses the System.
1.2
Unless the context otherwise requires:
(a) references to statutory provisions shall be construed as references to those provisions as
respectively
replaced, amended or re-enacted (whether before or after the date hereof) from time to time and
shall
unregistered), patents, know-how, trade secrets, inventions, get-up, database rights and any
application
include any provisions of which there are re-enactments (whether with or without modification) and
any
subordinate legislation made under such provision so far as such modification or re-enactment
applies or
is capable of applying to any transactions entered into and (so far as liability thereunder may
exist or can
arise) shall include also any past statutory provisions or regulations (as from time to time
modified or re-enacted)
which such provisions or regulations have directly or indirectly replaced
(b) words importing the singular include the plural and vice versa, words importing any gender
include
every gender, words importing persons include bodies corporate and unincorporated and references to
time shall mean UAE time
(c) references to Clauses, Recitals and other provisions in this Agreement and the Schedules to this
Agreement are references to Clauses, Recitals and other provisions of, and Schedules to this
Agreement and terms defined in the Recitals shall have the same meanings where used throughout this
Agreement
(d) Clause headings are for convenience of reference only and shall not affect the interpretation of
this Agreement and
(e) Schedules and Recitals are an integral part of this Agreement and have the same force and effect
as if expressly set out in the body of this Agreement and reference to this Agreement includes
reference to all the aforesaid.
2. USE RIGHT
2.1
During the term of this Agreement and subject to the terms and conditions herein, UNIVER grants to the Customer a non-exclusive and non-transferable right to permit the Customer’s Users to use the System for the Customer’s business purposes.
2.2
The Parties agree that:
(a) the Customer shall be entitled to display its logo and other branding on the System and
(b) UNIVER shall be identified in the System as the technology partner of the Customer.
2.3
The Customer shall designate one or more system administrators (System Administrators). The System Administrators shall be responsible for managing User access including but not limited to adding and subtracting Users. The System Administrator shall ensure that multiple Users do not share a password or user name. Customer acknowledges and agrees that it is prohibited from sharing passwords and/or user names with unauthorised users.
2.4
The Customer represents and warrants to UNIVER that it has at all times complied with and will continue to comply with the requirements of the General Data Protection Regulation (GDPR), whether applicable to the Customer and/or UNIVER, in respect of the collection, use, disclosure and other handling of personal data. Specifically, the Customer agrees and undertakes with UNIVER that its privacy policy with the Users shall contain provisions which entitles UNIVER to collect and use personal data of the Users for its own internal analytics.
2.5
The Customer acknowledges and agrees that the System is not intended for use with protected sensitive information such as credit card numbers, financial account numbers. The Customer assumes all risk arising from use of any such sensitive information with the System including but not limited to the risk of any inadvertent disclosure or unauthorised access thereto. The Customer is responsible for ensuring that the Customer and Customer’s Users’ use of the System is in compliance with all applicable laws and governmental regulations. The Customer acknowledges and agrees to assume all risk arising from any such use that is not compliant with applicable laws and regulations.
2.6
The Customer agrees to the privacy policy of UNIVER (Privacy Policy) located at http://www.univer.me/PrivacyPolicy. The Customer further acknowledges and agrees that UNIVER as well as its representatives and/or agents may from time to time amend, modify or otherwise update this Privacy Policy at its discretion, without prior notification to the Customer. The Customer shall be bound by the Privacy Policy as may be amended, modified or otherwise updated.
2.7
The Customer hereby authorises UNIVER to use its logo for all of UNIVER marketing activities including but not limited to publishing the logo on UNIVER’s web and/or mobile applications.
3. TERM
This Agreement shall commence on the date of this Agreement and shall continue until or unless terminated in accordance with any of the provision of this Agreement.
4. PAYMENT
4.1 In consideration for the Use Right and services provided by UNIVER to the Customer, the
Customer agrees to pay the Fee where applicable.
4.2 The Parties agree that the contract will be renewed automatically unless terminated in
accordance to clause 11.
4.3 All payments by the Customer under this Agreement shall be paid in US Dollars without set-off or
counterclaim and free and clear of and without deduction or withholding for or on account of any
taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature, imposed by
any relevant jurisdiction, or by any department, agency or other political subdivision or taxing
authority thereof, and all interest, penalties or similar liabilities with respect thereto
(“Taxes”), unless deduction or withholding of such Taxes is required by law, in which event the
Customer shall pay such additional amount as shall be required to ensure that the net amount
received by UNIVER will equal the full amount which would have been received by them had no
such deduction or withholding been made
5. RESTRICTIONS
The Customer undertakes not to:
(a) Sub-contract, assign, rent, lease or transfer the Use Right or the System or make or distribute
copies of the System except as permitted by this Agreement;
(b) translate, adapt, vary, modify, disassemble, decompile or reverse engineer the System without
UNIVER’s prior written consent;
(c) Create any derivative works based upon the System
(d) Make copies of the System, in whole or in part, except for back-up or archival purposes as
permitted in by UNIVER.
6. SECURITY AND CONTROL
6.1
The Customer shall during the continuance of this Agreement:
(a) Effect and maintain adequate security measures to safeguard the System from access or used by
any unauthorised person
(b) Retain the System and all copies thereof under the Customer’s effective control
(c) Maintain a full and accurate record of the Customer’s copying and disclosure of the System and
shall produce such record to UNIVER on request from time to time.
6.2
The Customer shall immediately notify UNIVER if it becomes aware of any loss or theft or unauthorised use of any of the Customer’s passwords and/or usernames.
6.3
UNIVER shall ensure that the System Availability Level (as determine in the manner set out
below) of the System is not less than 98%. System Availability Level shall be determined according
to the following formula:[RP1]
System availability = [Operating hours - System Downtime] / [Operating hours] x 100%.
For the purpose of Clauses 6.3 and 6.4:
Operating Hours means the scheduled operating hours of the System which will be, unless otherwise
specified, for twenty-four (24) hours on a daily basis including all Saturdays, Sundays and public
holidays.
System Downtime means the accumulated time during which the System is not fully available for use
due to the issue of software configurations within the control of UNIVER measured from the
time of such failure is reported to UNIVER to the time when the System is returned to proper
operation. For the avoidance of doubt:
(a) For computation of System Downtime, the failure must be of Severity level 1 (as defined
below);
(b) UNIVER shall not be responsible for unavailability of the System due to issue relating
to hosting of the System on third party cloud server
(c) Scheduled maintenance shall not be included in the computation of System Downtime.
UNIVER shall provide the Customer with two (2) days prior notice of any scheduled
maintenance.
6.4
UNIVER agrees that:
(a) in the case where the System cannot perform without remedial action from UNIVER
(Severity Level 1), UNIVER shall rectify the error within reasonable time. UNIVER
shall provide report on progress of such remedial action to the Customer within 1 Business Day from
the date UNIVER is notified of such incident.
(b) in the case where the System can perform but some parts of it are affected (Severity Level 2),
UNIVER shall rectify the error within reasonable time. UNIVER shall provide report
on the progress of such remedial action to the Customer within 2 Business Days from the date
UNIVER is notified of such incident.
7. PROPRIETARY RIGHTS
7.1
The System and the Intellectual Property Rights of whatever nature in the System are and shall remain the property of UNIVER.
7.2
The Customer shall notify UNIVER immediately if the Customer becomes aware of any unauthorised use of the whole or any part of the System and/or Intellectual Property Rights by any person.
8. INTELLECTUAL PROPERTY AND DISCOVERY
8.1
The Customer acknowledges that any and all trademarks, trade names, copyrights, patents and other Intellectual Property Rights created, developed, embodied in or in connection with the System or any enhancement thereto shall be and remain the sole property of UNIVER and the Customer undertakes to assign (or cause to be assigned) all its interest therein to UNIVER or its nominee. The Customer shall not during or at any time after the termination of this Agreement in any way question or dispute the ownership by UNIVER of any such rights.
8.2
Whenever requested to do so by UNIVER, the Customer shall execute any and all applications, assignments or other instruments which UNIVER deems necessary to give effect to this Clause.
9. CONFIDENTIALITY
9.1
Both Parties to this Agreement undertake, except as provided below, to treat as confidential and keep secret all information marked “confidential” or which may reasonably be supposed to be confidential, including without limitation, information contained or embodied in the System and other information supplied by the Customer or UNIVER (collectively referred to as the “ Information ”) with the same degree of care as its employs with regard to its own confidential information of a like nature and in any event in accordance with best current commercial security practices, provided that, this Clause shall not extend to any information which was rightfully in the possession of either Party prior to the commencement of the negotiations leading to this Agreement or which is already public knowledge or become so at a future date (otherwise than as a result of a breach of this Clause).
9.2
Both Parties shall not without the prior written consent of the other Party divulges any part of the
Information to any person except:
(a) To their own employees and then only to those employees who need to know the same
(b) To a court of competent jurisdiction, governmental body or applicable regulatory authority and
any other persons or bodies having a right, duty or obligation to know the business of the other
Party and then only in pursuance of such right duty or obligation
9.3
Both Parties undertake to ensure that persons and bodies referred to in Clause 9.2 are made aware before the disclosure of any part of the Information that the same is confidential and that they owe a duty of confidence to the other Party.
9.4
Each Party to this Agreement shall promptly notify the other Party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Information and shall give the other Party all reasonable assistance in connection with any proceedings which the other Party may institute against such person for breach of confidence.
9.5
The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the Use Right or this Agreement.
10. TERMINATION
10.1
Either Party may terminate this Agreement by giving the other Party three (3) months’ notice in writing of its intention to terminate this Agreement.
10.2
Without prejudice to Clause 10.1 above, UNIVER may terminate this Agreement forthwith on giving notice in writing to the Customer if the Customer commits any serious breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within three (3) days after the receipt of a request in writing from UNIVER to do so, to remedy the breach (such request to contain a warning of UNIVER’s intention to terminate).
10.3
The Parties agree that:
(a) in the event UNIVER terminates this Agreement through no fault on the part of the
Customer, the Parties shall negotiate in good faith on the appropriate refund from
UNIVER.
(b) in the event the Customer terminates this Agreement through no fault on the part of
UNIVER, all payment paid by the Customer to UNIVER shall be nonrefundable.
11. AGENCY AND PARTNERSHIP
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
12. AMENDMENTS
This Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any matter except by an instrument in writing signed by a duly authorised officer or representative of each of the Parties.
13. ASSIGNMENTS
14.1 This Agreement is personal to the Parties and neither this Agreement nor any rights, licenses
or obligations under it, may be assigned by either Party without the prior written approval of the
other Party.
14.2 Any attempted assignment in violation of this Clause will be void and without effect.
14. ENTIRE AGREEMENT
This Agreement supersedes all prior agreements, arrangements and undertakings between the Parties and constitutes the entire agreement between the Parties relating to the subject matter of this Agreement. However, the obligations of the Parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
15. NOTICES
15.1
All notices under this Agreement shall be in writing.
15.2
Notices shall be deemed to have been duly given:
(a) When delivered, if delivered by courier or other messenger (including registered mail) during
normal business hours of the recipient; or
(b) When sent, if transmitted by fax or e-mail and a successful transmission report or return
receipt is generated; or
(c) On the third calendar day following mailing, if mailed by ordinary mail, postage prepaid;
or
(d) On the tenth calendar day following mailing, if mailed by airmail, postage prepaid.
In each case addressed to the most recent address, e-mail address, or facsimile number notified to
the other Party.
16. SEVERANCE
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provision of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
17. SUCCESSORS AND ASSIGNEES
17.1
This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective successors and permitted assignees, and references to a Party in this Agreement shall include its successors and permitted assignees.
17.2
In this Agreement references to a Party include references to a person:
(a) Who for the time being is entitled (by assignment, novation or otherwise) to that Party’s rights
under this Agreement (or any interest in those rights); or
(b) Who, as administrator, liquidator or otherwise, is entitled to exercise those rights,
and in particular those references include a person to whom those rights (or any interest in those
rights) are transferred or pass as a result of a merger, division, reconstruction or other
reorganisation involving that Party. For this purpose, references to a Party’s rights under this
Agreement include any similar rights to which another person becomes entitled as a result of a
novation of this Agreement.
18. WAIVER
No delay, neglect or forbearance on the part of either Party in enforcing against the other Party any term or condition of this Agreement shall either be or deemed to be a waiver or in any way prejudice any right of that Party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either Party is exclusive of any other right, power or remedy available to that Party.
19. EXECUTION IN COUNTERPARTS
This Agreement may be signed in any number of counterparts, all of which taken together and when delivered to the Parties by facsimile or by electronic mail in "portable document format (".pdf") form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, or by a combination of such means, shall constitute one and the same instrument. Any Party may enter into this Agreement by manually signing any such counterpart transmitted electronically or by facsimile or other electronic signature (such as EchoSign) by any of the Parties to any other Party and the receiving Party may rely on the receipt of such document so executed and delivered by facsimile or other electronic means as if the original had been received. Such signatures executed by way of facsimile or other electronic means (such as EchoSign) shall be recognised and construed as secure electronic signatures pursuant to the Electronic Transactions Act 2010 and that the Parties accordingly shall deem such signatures to be original signatures for all purposes.
20. TIME OF THE ESSENCE
Time shall be of the essence in this Agreement as regards any time, date or period mentioned in this Agreement or subsequently substituted as a time, date or period by agreement in writing between the Parties.
21. COST AND EXPENSES
Each Party shall bear its own legal costs and other costs and expenses arising in connection with the drafting, negotiation, execution and registration (if applicable) of this Agreement.
22. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT
A person or entity who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Act (Cap. 53B) to enforce any term of this Agreement.
23. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed according to the laws of the United Arab Emirates. Each Party hereby submits to the exclusive jurisdiction of the United Arab Emirates courts.
24. FURTHER ASSURANCE
The Parties shall execute and do and procure all other persons if necessary, to execute and do all such further deeds, assurances, acts and things as may be reasonably required so that full effect may be given to the terms and conditions of this Agreement.
25. STUDENTS APPLICATIONS
Students using the online platform agree and authorize UNIVER to fill and submit any extra/additional application forms on their behalf to the institutions in order to get them the official reply from that particular institution when/if needed.
