TERMS & CONDITIONS



Overview

General Terms and Conditions

EMEX General Terms and Conditions. Updated: 25th. February 2015

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF EMEX SERVICES. BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM "YOU" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

The Agreement is effective between You and EMEX as of the date of You accepting this Agreement and supersedes any prior agreements and will continue in effect for the “Initial Subscription Term” or “Term” or until terminated or automatically renewed in accordance with the termination and automatic renewal provisions contained herein.

Definitions

"Affiliate" means any entity that (at the time of completion of the contract), directly or indirectly is controlled by the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means these General Terms and Conditions and any associated Statement of Work or Order Form agreed and signed by both parties.

“Effective Date” is the date of the agreement as defined in the Order Form.

“Initial Subscription Term” or “Term” means the initial term of this agreement as set out in the Order Form.

"Customer" or “You” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

"EMEX" means the company, Complete Business Solutions SA T/A “EMEX” described above (who, as the Customer, you are contracting with), Notices, Governing Law and Jurisdiction.

“Renewal Period” means the period described in clause 19.1.

“Services” or “Service” means the products and services marketed under the brand name EMEX (amongst others) that are ordered by the Customer and made available online by EMEX, including any associated offline components. “Services” exclude Content.

“Statement of Work” or “SOW” means any document (other than this Agreement) agreed between and signed by both parties detailing additional work to be undertaken for the Customer by EMEX during the term of this agreement.

““SLA” means Service Level Agreement, 'the explanation of the levels of service that EMEX guarantees their paying customers about the availability' of the EMEX Services.

“Upgrades” means any enhancement or improvement to the functionality of the Service made available to the Customer by EMEX at EMEX’s sole discretion from time-to-time but excluding any software or services marketed or sold by EMEX as a new version or new release.

“User” means an individual who is authorised by Customer to use a Service, for whom the Customer have ordered the Service, and to whom the Customer (or EMEX at the Customer request) have supplied a user identification and password. Users may include, for example, Customer employees and contractors.

1. Licensed Software Access

The software access licensed to the Customer hereunder includes the specific software modules which the Customer has agreed to purchase as outlined in the Order Form.

2. Named User License

In consideration of the Customer paying EMEX the Annual Fees as defined in the Order Form (the “License Fee”), EMEX hereby grants to the Customer the royalty free Named User Licenses to use the System including any updates to the existing functionality. The term ‘Named User License’ shall mean the royalty free license for named employees of the Customer or Customer Affiliate (each being a User and the word User shall mean any of them) to access and use the System in accordance with the license categories as outlined and defined in the Order Form.

3. Usage Rights & Monitoring

The Customer is responsible for monitoring its use of the Service and ensuring all usage is fully licensed.

The rights of any Named User licensed to utilise the Service cannot be shared or used by more than one individual. In addition, a Named User may not be transferred from one individual to another unless the original user no longer requires, and is no longer permitted, access to the Service.

The Customer must not use Software components other than those specifically identified in this Agreement, even if it is also technically possible for Customer to access other Software components

The Customer shall without undue delay report to EMEX any actual use in excess of the number of Named Users or the amount of any fee-based metric authorized under this agreement and any other information reasonably necessary to calculate the amount of fees payable under this Agreement. The Customer agrees to execute an addendum and pay all requisite fees in accordance with the terms of this Agreement to reflect any excess. Such fees shall accrue from the date the excess use began. For the avoidance of doubt, the Customer shall not be entitled to claim any reduction of the fees payable under this Agreement or reduce the Named Users or other fee-based metrics during the term of the Order Form.

4. Services being delivered

EMEX and the Customer agree that the specific functionality of the System is as established in Order Form or any associated Services Scope Document.

5. Software Upgrades

Throughout the period of this Agreement EMEX shall supply upgrades to the System (“Upgrades”) as they become available at no extra cost to the Customer.

6. Support

EMEX will, as part of the Services and at no additional cost to the Customer, provide the Customer with EMEX’s standard customer support services during Normal Business Hours in accordance with EMEX's Support Services Policy in effect at the time that the Services are provided. EMEX may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at EMEX’s then current rates. Support and service level details are available in EMEX Service Level Agreement document attached hereto as APPENDIX A.

7. Payment

All invoices will be in the currency stated on the Order Form and payable on the terms indicated within it. All prices exclude VAT and other levies imposed by the government. The amounts invoiced to the Customer will include applicable VAT and other levies possibly imposed by the government.

The Customer shall reimburse EMEX for all reasonable travel and subsistence expenses and all other out of pocket expenses properly incurred in the course of performance of EMEX’s obligations under this Agreement. All travel and subsistence that is to be incurred by EMEX shall be agreed with the Customer prior to the travel taking place and shall be payable on a Net Due Immediately basis after the presentation of an invoice by EMEX.

8. Intellectual Property Rights

8.1 EMEX retains all right, title and interest in and to any intellectual property related to the Services subject to the licenses granted below.

8.2 EMEX hereby grants to the Customer the non-exclusive right and license to use EMEX IP during the Term in accordance with the terms and conditions set forth in this Agreement.

8.3 All IP in any Product, and all IP otherwise developed for the Customer by EMEX in performance of the Services, and any alterations, additions or amendments to IP, shall be the property of EMEX.

8.4 Despite anything else in these Terms, the Customer acknowledges that EMEX owns the Software and nothing in these Terms transfers ownership of the Software to the Customer or any other person. EMEX does not grant any license to the Customer or any other person to use the Software, unless such a license is expressly granted in this Master Agreement or any subsequent Statement of Work (SOW) which has been signed by both parties.

8.5 Nothing contained in this Agreement shall preclude EMEX from rendering services to others or developing work products that are competitive with, functionally comparable to, and not unlike the Services and Products developed under this Agreement or a subsequent SOW with EMEX. EMEX shall not be restricted in its use of ideas, concepts, know-how, and techniques acquired or learned in the course of performing the Services and developing the Products, including functionality included in Products; provided that EMEX shall not use or disclose any of the Customer’s Confidential Information or use any logos, trademarks, or service marks of the Customer or any Affiliate of Customer.

8.6 The Customer hereby grants EMEX the right and license to use the Customer Confidential Information provided by or entered into the Customer’s system by the Customer or any Customer agent solely to the extent necessary for EMEX to perform its obligations hereunder.

EMEX shall indemnify the Customer against all damages, losses and expenses arising as a result of any action or claim that the System (including all components thereof and any Updates) infringes the intellectual property rights of any third party provided that EMEX is given immediate and complete control of any such claim, that the Customer does not prejudice EMEX’s defence of any such claim and that the Customer gives EMEX all reasonable assistance with such claim. Without prejudice to this indemnity, EMEX shall have the right to replace or change any part of the infringing item in order to avoid infringement, so long as such replacement or change does not materially affect the performance of the System.

9. Warranties

9.1 EMEX represents and warrants that the System has been developed in a workmanlike manner, and in conformity with generally prevailing industry standards.

9.2 As the host of the System, EMEX represents and warrants that EMEX (i) shall prevent unauthorized access to EMEX's servers (or those leased by EMEX), the System and any databases or other sensitive material generated from or used in conjunction with the System; (ii) shall notify the Customer of any known security breaches of the servers and/or System; and (iii) shall maintain a current and complete copy of the System on a server located at a remote location, and in the event that service is interrupted to the System, the remote server shall be immediately activated so that the Customer's access to the System continues without interruption.

9.3 Not by way of limitation of the foregoing, EMEX represents and warrants that it is familiar with the EU Privacy Directive and the privacy laws or the country in which the System will be hosted and the Customer's data will be stored and processed by EMEX (such Directive and laws are hereinafter collectively referred to as the "Privacy Laws"). EMEX further represents and warrants that it (i) has full legal authority to receive, store and process such data, and (ii) shall provide all storage and processing services hereunder in full compliance with the Privacy Laws, including but not limited to those related to adequate levels of security, data protection and confidentiality. EMEX shall only use the data for purposes of its performance of services hereunder or as may be subsequently authorized by the Customer in writing.

10. Liability

Except for EMEX's indemnification obligations set forth in Sections 8 and 9 hereof, neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the use of the System, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages. EMEX’s total liability under this Agreement with respect to the System, regardless of cause or theory of recovery, will not exceed twice the total amount of fees paid by the Customer under this agreement.

EMEX will indemnify the Customer against all costs claims demands expenses and liabilities of a direct nature arising out of or in connection with damage caused to property caused by the negligence or wilful misconduct of EMEX's employees in connection with the provision of the services hereunder.

11. Insurance

11.1 Without prejudice to the provisions of Clause 11 [Liability], EMEX shall obtain at his own cost and maintain in full force and effect from the effective date a General Liability insurance cover with a first-ranking reputable insurance company, covering all the damages of any kind, which may be caused to the Customer or any third parties, resulting from the performance of this Agreement by EMEX or its representatives, partners or subcontractors, including public liability, products liability, professional liability.

11.2 At all time, EMEX shall be able to provide the Customer with insurance certificates evidencing that all required coverage is in effect and that payment of premium is current.

11.3 EMEX’s liabilities under this Agreement shall not be deemed to be released or limited by EMEX taking out the insurance policies referred to in this Clause 12 [Insurance].

12. Confidentiality

Each party shall treat as confidential all information obtained from the other in the context of negotiation, execution and performance of this Agreement and shall not divulge such information to any person (except to such party's own employees and then only to those employees who need to know the same) without the other party's prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to the contract, which is already public knowledge or becomes so at a future date (otherwise than as a result of breach of this clause) or which is trivial or obvious. Each party shall ensure that its employees are aware of the provisions of this clause and each party shall use all reasonable endeavours to ensure that its employees comply with the provisions thereof. The foregoing obligations as to confidentiality shall continue to apply not withstanding the termination of this Agreement.

13. Customer Confidential Information

13.1 “Confidential Information” shall mean all information, in whatever form, disclosed by the Customer to EMEX relating to its business, affairs, employees, customers, financial condition, assets, operations, trade secrets, products, services and other data (whether or not of a similar nature) that is either non-public, confidential or proprietary in nature and may include information concerning its affiliates and subsidiaries. Confidential Information also includes information and materials identified by the Customer as confidential or which would reasonably be expected by EMEX to be confidential or proprietary based on the nature of the information contained therein and the circumstances in which the materials are provided. Any work product or portion thereof containing any Confidential Information, in whatever form, shall also be deemed to be Confidential Information.

13.2 Non-use of Confidential Information.

(a) EMEX shall not: (i) disclose, display, market, publish, provide, release, sell, transfer or otherwise make available all or any portion of the Confidential Information other than to its employees, agents, representatives and contractors having a need to know such Confidential Information for the purpose of this Agreement and to its legal, tax and other professional advisors; or (ii) use any portion of the Confidential Information otherwise than for the purpose of this Agreement; or (iii) reverse assemble, reverse compile, engineer or reverse engineer all or any portion of the Confidential Information; or (iv) create any derivative works from the Confidential Information.

(b) EMEX shall and shall require that each of its employees, agents, representatives, contractors and/or legal, tax and other professional advisors to whom the Confidential Information is disclosed pursuant to paragraph (a) hereof at all times hold in confidence and keep strictly confidential all and any portion of the Confidential Information.

(c) EMEX shall not, without the prior written consent of the Customer, copy or reproduce any document containing Confidential Information which may be supplied hereunder and EMEX shall return to the Customer any such document and any copies made thereof at the request of the Customer.

(d) EMEX shall effect and maintain adequate security measures to safeguard the Confidential Information from unauthorised access, use and misappropriation.

13.3 Return. Upon termination of this Agreement, or upon written request of the Customer, EMEX shall (i) promptly return to the Customer, or destroy if so instructed by the Customer, all originals and copies of documents and other materials, in all media (including electric storage), that were received pursuant to this Agreement and that contain Confidential Information; and (ii) shall destroy all originals and copies of documents and other materials, in all media (including electric storage), that were prepared by EMEX and which contain Confidential Information.

13.4 Indemnity. EMEX hereby agrees to indemnify and keep indemnified and hold harmless the Customer, its directors, agents, officers, employees and sub-contractors (the "Indemnities") from and against any and all claims, proceedings, actions, damages, liabilities, losses, costs and expenses ("Claims") directly or indirectly suffered or incurred by the Indemnities arising out of or in connection with any breach of this Clause 14 by EMEX.

13.5 The obligations of these Clauses 13/14 shall continue to apply notwithstanding the termination of this Agreement.

14. Limitations on Use

14.1 The Customer agrees that it will use the System only in its own business and that of its affiliated companies and not directly or indirectly for the use or benefit of anyone other than the Customer and said affiliated companies, and only pursuant to the scope of the grant of the License set forth herein.

14.2 The Customer will not decode, alter, decompile, reverse engineer, perform reverse analysis on or disassemble the System.

15. Limitations on Transfer

This License is personal to the Customer and may not be conveyed in any way without the prior written consent of EMEX, save that such transfer is made to an Affiliate Company. Any purported sale, assignment, transfer or sublicense without such consent will be null and void ab initio.

16. Customer’s Obligations

During the continuance of this Agreement the Customer shall:

  • ensure that it has the appropriate hardware and operating environment for the operation of the System;

  • provide information needed by EMEX to perform its services and obligations in a timely manner and in accordance with any timescales agreed;

  • allow EMEX, their employees or their appointed agents adequate access to its premises and to the System at all reasonable times (if hosted on the Customer’s premises) and on reasonable notice for the purpose of supporting the System and to carry out its other services under this Agreement; EMEX shall respect all the Customer’s safety norms and regulations. EMEX must enquire from the Customer as to the specific safety regulations applicable to a site before entering such site and shall ensure that EMEX’s employees and subcontractors who may enter into any Customer’s site comply with those specific site’s safety regulations.

17. Term and Termination

17.1 This agreement shall, unless otherwise terminated as provided in this clause 17, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:

(a) either party notifies the other party of termination, in writing, at least ninety (90) days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(b) otherwise terminated in accordance with the provisions of this agreement;

The License Fees during any automatic renewal term will be the same as that during the immediately prior term unless EMEX has given the Customer written notice of a price increase at least six (6) months before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. Any such pricing increase will not exceed 10% of the License Fees for the immediately prior term, unless the pricing in the immediate prior term was designated in this agreement or the relevant order form as promotional or one-time.

17.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:

  • by EMEX forthwith on giving 15-days notice in writing to the Customer if the Customer shall fail to pay any sum due under the terms of this agreement and such sum remains unpaid for 15 days after written notice from EMEX that such sum has not been paid; or

  • by either party forthwith on giving 15-days notice in writing to the other if the other commits any material breach of any term of this Agreement; or

  • by either party forthwith on giving 15-days notice in writing to the other if the other party shall have a receiver or administrative receiver or examiner appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding up (other than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction); or if any event analogous to any of the foregoing shall occur in any other jurisdiction.

Any termination of this Agreement shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

17.3 Data Portability and Deletion.

Upon request by the Customer made within 30 days after the effective date of termination or expiration of this Agreement, EMEX will make the Customer’s Data available to the Customer for export or download as provided in the Documentation. After that 30-day period, EMEX will have no obligation to maintain or provide Customer Data, and will thereafter delete or destroy all copies of the Customer Data in EMEX systems or otherwise in EMEX possession or control unless legally prohibited.

18. Force Majeure

Neither party shall be liable for, nor shall it be considered in breach of this Agreement due to any failure to perform its obligations under this Agreement as a result of a cause beyond its control which could not have been prevented by the non-performing party with reasonable care. Without limiting the generality of the foregoing, a Force Majeure Event may include any of the following acts, events or circumstances : any act of God or a public enemy or terrorist, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, strikes that are widespread, nation-wide or political in nature (but excluding strikes, lockouts and other industrial disturbances which are not part of a wider industrial dispute materially affecting other employees within [country])., unavailability of supplies (after all reasonable efforts have been made to secure an alternative source of such supplies).

19. Relation of Parties

Nothing in this Agreement will create or imply an agency relationship between EMEX and the Customer, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.

20. Law

This Agreement shall be governed by and construed in accordance with the laws of Switzerland and the Customer hereby submits to the exclusive jurisdiction of the Swiss Courts.

21. Entire Agreement

This Agreement supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. No addition to or modification of any provision of this agreement shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of each of the parties.

22. Miscellaneous

23.1 Headings

The titles to the articles in this Agreement have been inserted for convenience of reference only, do not form part of the Agreement, and shall not in any way affect the interpretation thereof.

23.2 Severability

Should individual provisions of this Agreement be or become invalid, this will not affect the validity of the remaining provisions. There shall be substituted for any such provision a suitable provision which, as far as is legally possible, comes nearest to what the Parties hereto desired or would have desired according to the sense and purpose of this Agreement.

23.3 No waiver

No waiver of any default by either party or any failure to enforce any rights under the Agreement shall be deemed to constitute a waiver of any subsequent default with respect to the same or any other provision thereof.

23.4 Assignment

Neither party may assign or transfer the Agreement in whole or in part without the written consent of the other party, which consent shall not be unreasonably withheld.

23.5 Notices

All notices given by one party to the other party shall be sent by registered mail or fax to the other party’s address as set out at the beginning of the Agreement or to the latest address of such party as shall have been communicated in writing to the other party.

23.6 Communication

EMEX shall not use the Customer’s name and the contents of the Agreement in marketing, advertising or public relations material without the Customer’s prior written approval. EMEX shall not use any data of the Customer in demo or test environment for commercial and/or marketing purposes.

APPENDIX A – Service Level Agreement

1. EMEX SERVICE LEVEL AGREEMENT

The support level agreement (SLA) will be provided to the Licensee (“Customer”) in accordance with this description. The SLA is incorporated into the EMEX License and Service Agreement and applicable to all services delivered directly to Customers of EMEX and subsidiaries or affiliates of the Customer. The SLA is not applicable to unrelated third parties or third parties lacking privity of contract with EMEX.

TECHNICAL CONTACTS

Customers shall nominate a Technical Contact to liaise with EMEX for technical support. Customers can nominate between one and five Technical Contacts. Customers shall notify EMEX whenever Technical Contact responsibilities are transferred to another individual.

Nominated Technical Contacts can submit support tickets via the Zendesk EMEX Support portal. EMEX will use commercially reasonable efforts to promptly respond to each ticket, and will use commercially reasonable efforts to promptly resolve each ticket.

The nominated Technical Contact will be responsible for the following EMEX related activities once the system is live:

1. First line support calls in reference to the EMEX system.

2. Logging tickets on the EMEX Support Portal

3. Overseeing Customer’s support ticket activity

4. Developing and deploying troubleshooting processes within Customer’s organization

5. Implementing general system configuration including Workgroups, Business Units, Users, Roles, People or Companies;

6. Module specific configuration;

7. Master List Values or Checklist configuration;

8. Workflow or Email Template configuration;

9. Search Group, Report, Pivot, Chart, Dashboard or Formula configuration;

10. Localisation of EMEX application content;

11. Testing of customer specific configuration

12. Database Backups and recovery (on premise only)

13. Creating and maintaining user accounts including password resets and user account lockouts due to incorrect login attempts;

14. Support and maintenance of non-production environments i.e. Development, Test or Training;

Customers shall ensure that Technical Contacts:

1. Are qualified in a Computer or Technology related degree or diploma

2. Have completed the EMEX System Administration course and have obtained the EMEX System Administration certification

3. Are knowledgeable about the EMEX Application and the Customers EHS Process in order to help resolve, and to assist EMEX in analysing and resolving, technical issues, and

4. Have an understanding of any problem that is the subject of a ticket, and the ability to reproduce the problem in order to assist EMEX in diagnosing and triaging it.

SUPPORT TICKETS

When a ticket is submitted to the EMEX Support Portal it will be assigned a unique ticket number which will be communicated to the Technical Contact. Updates to a ticket automatically generate email notifications to the Technical Contact. Actual resolution time will depend on the nature of the ticket and the resolution. A resolution may consist of a fix, workaround or other solution in EMEX's reasonable determination.

TELEPHONE SUPPORT

EMEX will provide telephone support from 8:30 to 5:30 GMT, on normal business days. Business days are defined as Monday to Friday with the exception of days when the office is closed. Days when the office is closed are defined as all UK public holidays.

SEVERITY LEVELS

Tickets will be categorized and handled according to a severity level shown in the table below. The ticket severity level is selected by the Technical Contact at time of ticket submission.

Severity Level

Description

Level 1 – Critical

Critical production issue affecting all users, including system unavailability and data integrity issues with no workaround available.

Level 2 - Urgent

Major functionality is impacted or significant performance degradation is experienced. Issue is persistent and affects many users and/or major functionality. No reasonable workaround available.

Level 3 - High

System performance issue or bug affecting some but not all users. Short-term workaround is available.

Level 4 – Medium

Enquiry regarding a routine technical issue; information requested on application capabilities, navigation, installation or configuration; bug affecting a small number of users.

Reasonable workaround available. Resolution required as soon as reasonably practicable.

TARGET RESPONSE & FIX TIME

An EMEX Support Representative will use commercially reasonable efforts to call or email the User within 2 business days and will use commercially reasonable efforts to promptly resolve each case.

TASK REQUESTS

Technical Contacts can also log task or work order requests via the EMEX support portal. EMEX will use commercially reasonable efforts to respond to a customer task requests within 2 business days. The initial response will provide estimate timescales and costs to complete the request.

WHAT WE SUPPORT

We provide technical support under this agreement for the following EMEX Licensed Software:

1. EMEX ASP.net Web Application

2. EMEX Application Database

3. All EMEX Web Services hosted in IIS

4. EMEX Incident Offline Application

5. EMEX Workflow Designer

6. EMEX Dashboard Designer



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