This Service Level Agreement is between Muellners Inc and its affiliates, subsidiaries and foreign branches and;
You(hereinafter referred to as “Customer”)
Muellners and Customer are individually referred to as a “Party” and collectively referred to as “the Parties”. Purpose and scope of agreement: The purpose of this agreement is to set forth the conditions under which MUELLNERS provides services to Customer, access to the Finscale Enterprise Edition software, and under which Customer complies with the obligations set out hereafter.
By subscribing to the Finscale Platform Enterprise services (the "Services") provided by Muellners and its affiliates (collectively, "Muellners") in relation with Finscale Enterprise Edition (the "Software"), hosted on Muellners’s Cloud platforms (the "Cloud Platform") or on-premises ("Self-Hosting"), you (the "Customer") are agreeing to be bound by the following terms and conditions (the "Agreement").
The duration of this Agreement (the “Term”) shall be specified in writing on conclusion of this Agreement, beginning on the date of conclusion. It is automatically renewed for an equal Term, unless either party provides a written notice of termination minimum 30 days before the end of the Term to the other party.
Any active user account with access to the Software in creation and/or edition mode. Deactivated user accounts and accounts used by external people (or systems) who only have limited access to the Software through the portal facilities (known as "portal Users") are also counted as Users.
An "App" is a specialized group of features available with the Software in form of a web or a mobile based application.
Is considered a Bug any failure of the Software that results in a complete stop, error traceback or security breach, and is not directly caused by a defective installation or configuration. Non-compliance with specifications or requirements will be considered as Bugs at the discretion of Muellners (typically, when the Software does not produce the results or performance it was designed to produce, or when a country-specific feature does not meet legal accounting requirements anymore).
Unless specified otherwise, the Services provided under this Agreement are applicable only to the Covered Versions of the Software, which include the most recently released major versions.
To be covered by the current Agreement, the Customer has to run the most recent Covered Version at the time of conclusion of this Agreement. When this is not the case, additional costs are applicable, as described in section 5: Charges and Fees.
The Customer can use the Software hosted on the Cloud Platform, or choose the Self-Hosting option. The Cloud Platform is hosted and fully managed by Muellners in association with IBM partner program and Google’s Cloud Partner program, and accessed remotely by the Customer via individual cloud provider’s console. With the Self-Hosting option, the Customer instead hosts the Software on computer systems of their choice, that are not under the control of Muellners.
For the duration of this Agreement, Muellners gives the Customer a non-exclusive, non-transferable license to use (execute, modify, execute after modification) the Finscale Enterprise Edition software, under the terms set forth in this agreement including Appendix A.
The Customer agrees to take all necessary measures to guarantee the unmodified execution of the part of the Software that verifies the validity of the Finscale Enterprise Edition usage and collects statistics for that purpose, including but not limited to the running of an instance, the number of Users and installed web applications.
Upon expiration or termination of this Agreement, this license is revoked immediately and the Customer agrees to stop using the Finscale Enterprise Edition software and the Cloud Platform.
For the duration of this Agreement, Muellners commits to making all reasonable efforts to remedy any Bug of the Software submitted by the Customer through the appropriate channel (typically, Muellners's service desk email address or website form), and to start handling such Customer submissions within 2 business days.
The Customer understands that Bugs caused by a modification or extension that is not part of the official Software will not be covered by this service.
As soon as the Bug is fixed an appropriate remedy will be communicated to the Customer.
For Self-Hosting, if the bug has been addressed in a more recent revision of the Covered Version of the Software used by the Customer, the Customer agrees to update its systems to that revision in order to obtain the correction. The Customer will not be asked to upgrade to a more recent Covered Version of the Software as a remedy to a Bug.
When a Bug is fixed in any Covered Version, Muellners commits to fixing the Bug in all more recent Covered Versions of the Software.
Both parties acknowledge that as specified in the license of the Software and in the Limitation of Liability section of this Agreement, Muellners cannot be held liable for Bugs in the Software.
For the duration of this Agreement, Muellners commits to sending a "Security Advisory" to the Customer for any security Bug that is discovered in the Covered Versions of the Software, at least 2 weeks before making the Security Advisory public, unless the Bug has already been disclosed publicly by a third party. Security Advisories include a complete description of the Bug, its cause, its possible impacts on the Customer's systems, and the corresponding remedy for each Covered Version.
The Customer understands that the Bug and the information in the Security Advisory must be treated as Confidential Information as described in the section of Confidentiality during the embargo period prior to the public disclosure.
Muellners commits to apply the security remedies for any security Bug discovered in a version of the Software hosted on the Cloud Platform, on all systems under its control, as soon as the remedy is available, without requiring any manual action of the Customer.
Upgrade Service for the Software
For the duration of this Agreement, the Customer can submit upgrade requests through the appropriate channel (typically Muellners's upgrade service website), in order to convert a database migration on the Software to a more recent Covered Version (the "Target Version").
For both cloud platform and Self-Hosting, upgrade requests must include a complete backup copy of the Customer's database and the associated data (typically obtained from the Backup menu of the Software).
This service is provided through an automated platform in order to allow the Customer to perform unattended upgrades once a previous version of the Customer's database has been successfully upgraded for a Covered Version. The Customer may submit successive upgrade requests for a database, and agrees to submit at least 1 upgrade request for testing purposes before submitting the final upgrade request.
The Upgrade Service is limited to the technical conversion and adaptation of the Customer's database to make it compatible with the Target Version, and the correction of any Bug directly caused by the upgrade operation and not normally occurring in the Target Version.
It is the sole responsibility of the Customer to verify and validate the upgraded database in order to detect Bugs, to analyze the impact of changes and new features implemented in the Target Version, and to convert and adapt for the Target Version any third-party extensions of the Software that were installed in the database before the upgrade (except where applicable as foreseen in section Upgrade Service for third party extensions. The Customer may submit multiple upgrade requests for a database, until an acceptable result is achieved.
Upgrade Service for third-party extensions
For the duration of this Agreement, the Customer may request optional upgrade services for third-party extension modules of the Software, in addition to the regular Upgrade Services. This optional service is subject to additional fees (as described in section 5 Charges and fees) and includes the technical adaptation of third-party modules installed in the Customer's database and their corresponding data in order to be compatible with the Target Version. The Customer will receive an upgraded version of all installed third-party modules along with the upgraded database.
For the duration of this Agreement, when the Customer chooses to use the Cloud Platform, Muellners commits to providing at least the following services:
Choice of multiple hosting regions (minimum 3: Europe, America, Asia/Pacific)
Hosting in Tier-III data centers or equivalent, with 99.9% network uptime
Grade A SSL (HTTPS) Encryption of communication
Fully automated, verified backups, replicated in multiple regions
Disaster Recovery Plan, tested regularly
The details of the Cloud Hosting Services are described on the Service Level page of the cloud partner once the partner is chosen.
For the duration of this Agreement, the Customer may open an unlimited number of support tickets free of charge, exclusively for questions regarding Bugs (see Bugs fixing service) or guidance with respect to the use of the standard features of the Software and Services (functionalities, intended use, configuration, troubleshooting).
Other assistance requests, such as questions related to development, customizations, installation for Self-Hosting, or services required to access the Customer's database, may be covered through the purchase of a separate Service Pack. In case it’s not clear if a request is covered by this Agreement or a Service Pack, the decision is at the discretion of Muellners.
Tickets can be submitted online, or by phone directly to the Muellners offices in Denmark or India, subject to local opening hours.
At the commencement of the term of this agreement, when the customer appoints Muellners to setup and install a fork of Finscale Enterprise edition on the cloud platform or self hosted option, for any purpose, including those of evaluation of the Finscale platform, Muellners commits to provide such services, consistent with sections of 4.2, 4.3 and 4.4.
This service will also include database migration services provided that the customer consolidates its existing database, compliant to data import exercise, as communicated by Muellners, prior to setting off such an exercise.
If the customer’s existing database, to be imported into a configured Finscale Platform, is not appropriate to the standard data import exercise, this service is subject to additional fees (as described in section 5 Charges and fees).
5.1 Standard charges
The standard charges for the Finscale Enterprise subscription and the Services are based on the number of Users, the installed Apps, the Software version used by the Customer, no. of API calls per request, no. of API service requests, no. of records and specified in writing at the conclusion of the Agreement.
When during the Term, the Customer has more Users or more installed App service than specified at the time of conclusion of this Agreement, the Customer agrees to pay an extra fee equivalent to the applicable price (at the beginning of the Term) for the additional Users or Apps, for the remainder of the Term. The schedule of charges and fees and listed services is attached as an addendum to this agreement(ref proposal).
5.2 Renewal charges
Upon renewal as covered in section 1 Term, if the charges applied during the previous Term are lower than the most current applicable list price, these charges will increase by up to 7%.
5.3 Charges for Upgrade Services of third-party modules
Muellners reserves the right to reject an upgrade request for third-party modules under the above conditions if the quality of the source code of those modules is too low, or if these modules constitute an interface with third-party software or systems. The upgrade of such modules will be subject to a separate offer, outside of this Agreement.
All fees and charges are exclusive of all applicable federal, provincial, state, local or other governmental taxes, fees or charges (collectively, "Taxes"). The Customer is responsible for paying all Taxes associated with purchases made by the Customer under this Agreement, except when Muellners is legally obliged to pay or collect Taxes for which the Customer is responsible.
The Customer agrees to:
pay Muellners any applicable charges for the Services of the present Agreement, in accordance with the payment conditions specified in the corresponding invoice ;
immediately notify Muellners when their actual number of Users or their installed Apps, uploaded records exceed the numbers specified at the conclusion of the Agreement, and in this event, pay the applicable additional fee as described in section 5.1 Standard charges;
take all measures necessary to guarantee the unmodified execution of the part of the Software that verifies the validity of the Finscale Enterprise Edition usage, as described in section 3 Access to Software ;
appoint 1 dedicated Customer contact person for the entire duration of the Agreement;
When the Customer chooses to use the Cloud Platform, the Customer further agrees to:
take all reasonable measures to keep their user accounts secure, including by choosing a strong password and not sharing it with anyone else;
make a reasonable use of the Hosting Services, to the exclusion of any illegal or abusive activities, and strictly observe the rules outlined in the Acceptable Use Policy published at our cloud partner’s website.
When the Customer chooses the Self-Hosting option, the Customer further agrees to:
take all reasonable measures to protect Customer’s files and databases and to ensure Customer’s data is safe and secure, acknowledging that Muellners cannot be held liable for any data loss;
grant Muellners the necessary access to verify the validity of the Finscale Enterprise Edition usage upon request (e.g. if the automatic validation is found to be inoperant for the Customer);
Except where the other party gives its consent in writing, each party, its affiliates and representatives agree not to solicit or offer employment to any employee of the other party who is involved in performing or using the Services under this Agreement, for the duration of the Agreement and for a period of 24 months from the date of termination or expiration of this Agreement. In case of any breach of the conditions of this section that leads to the termination of said employee toward that end, the breaching party agrees to pay to the other party an amount of EUR (€) 60 000.00 (sixty thousand euros).
Except where notified otherwise in writing, each party grants the other a non-transferable, non-exclusive, royalty free, worldwide license to reproduce and display the other party’s name, logos and trademarks, solely for the purpose of referring to the other party as a customer, partner or supplier, on websites, press releases and other marketing materials.
Definition of "Confidential Information":
All information disclosed by a party (the "Disclosing Party") to the other party (the "Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. In particular any information related to the business, affairs, products, developments, trade secrets, know-how, personnel, customers and suppliers of either party should be regarded as confidential.
For all Confidential Information received during the Term of this Agreement, the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own similar Confidential Information, but not less than reasonable care.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted by law.
"Personal Data", "Controller", "Processing" take the same meanings as in the Regulation (EU) 2016/679 and the Directive 2002/58/EC, and any regulation or legislation that amends or replaces them (hereafter referred to as “Data Protection Legislation”)
Processing of Personal Data
The parties acknowledge that the Customer's database may contain Personal Data, for which the Customer is the Controller. This data will be processed by Muellners when the Customer instructs so, by using any of the Services that require a database (e.g. the Cloud Hosting Services or the Database Upgrade Service), or if the Customer transfers their database or a part of their database to Muellners for any reason pertaining to this Agreement.
This processing will be performed in conformance with Data Protection Legislation. In particular, Muellners commits to:
(a) only process the Personal Data when and as instructed by the Customer, and for the purpose of performing one of the Services under this Agreement, unless required by law to do so, in which case Muellners will provide prior notice to the Customer, unless the law forbids it ;
(b) ensure that all persons within Muellners authorised to process the Personal Data have committed themselves to confidentiality;
(c) implement and maintain appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure;
(d) forward promptly to the Customer any Data Protection request that was submitted to Muellners with regard to the Customer's database ;
(e) notify the Customer promptly upon becoming aware of and confirming any accidental, unauthorized, or unlawful processing of, disclosure of, or access to the Personal Data;
(f) notify the Customer if the processing instructions infringe applicable Data Protection Legislation, in the opinion of Muellners;
(g) make available to the Customer all information necessary to demonstrate compliance with the Data Protection Legislation, allow for and contribute reasonably to audits, including inspections, conducted or mandated by the Customer;
With regard to points (d) to (f), the Customer agrees to provide Muellners with accurate contact information at all times, as necessary to notify the Customer's Data Protection responsible.
In the event that either Party fails to fulfill any of its obligations arising herein, and if such breach has not been remedied within 60 calendar days from the written notice of such breach, this Agreement may be terminated immediately by the non-breaching Party.
Further, Muellners may terminate the Agreement immediately in the event the Customer fails to pay the applicable fees for the Services within the due date specified on the corresponding invoice.
The sections Confidentiality”, “Disclaimers”, “Liability”, and “General Provisions” will survive any termination or expiration of this Agreement.
For the duration of this Agreement, Muellners commits to using commercially reasonable efforts to execute the Services in accordance with the generally accepted industry standards provided that:
the Customer’s computing systems are in good operational order and, for Self-Hosting, that the Software is installed in a suitable operating environment;
the Customer provides adequate troubleshooting information and, for Self-Hosting, any access that Muellners may need to identify, reproduce and address problems;
all amounts due to Muellners have been paid.
The Customer's sole and exclusive remedy and Muellners ' only obligation for any breach of this warranty is for Muellners to resume the execution of the Services at no additional charge.
Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law.
Muellners does not warrant that the Software complies with any local or international law or regulations.
7.3 Limitation of Liability
To the maximum extent permitted by law, the aggregate liability of each party together with its affiliates arising out of or related to this Agreement will not exceed 10% of the total amount paid by the Customer under this Agreement during the 12 months immediately preceding the date of the event giving rise to such claim. Multiple claims shall not enlarge this limitation.
In no event will either party or its affiliates be liable for any indirect, special, exemplary, incidental or consequential damages of any kind, including but not limited to loss of revenue, profits, savings, loss of business or other financial loss, costs of standstill or delay, lost or corrupted data, arising out of or in connection with this Agreement regardless of the form of action, whether in contract, tort (including strict negligence) or any other legal or equitable theory, even if a party or its affiliates have been advised of the possibility of such damages, or if a party or its affiliates' remedy otherwise fails of its essential purpose.
7.4 Force Majeure
Neither party shall be liable to the other party for the delay in any performance or failure to render any performance under this Agreement when such failure or delay is caused by governmental regulations, fire, strike, war, flood, accident, epidemic, embargo, appropriation of plant or product in whole or in part by any government or public authority, or any other cause or causes, whether of like or different nature, beyond the reasonable control of such party as long as such cause or causes exist.
8.1 Governing Law
Both parties agree that the laws of Denmark will apply, should any dispute arise out of or in connection with this Agreement, without regard to choice or conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereinabove, both parties agree to submit to the sole jurisdiction of the Copenhagen (Danish) court for the purpose of litigating all disputes.
In case any one or more of the provisions of this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement and any application thereof shall be in no way thereby affected or impaired. Both parties undertake to replace any invalid, illegal or unenforceable provision of this Agreement by a valid provision having the same effects and objectives.