Keelvar SaaS Agreement Terms & Conditions
These Keelvar SaaS Agreement terms and conditions are entered into as of the date of the last party to sign the first Order Form placed under these terms (“Effective Date”) and are between the entity described as Keelvar on such Order Form (“Keelvar”) and the entity described as Customer on such Order Form (“Customer”).
These terms apply to Order Forms entered into between Keelvar and Customer. All Order Forms will be governed by the terms and conditions contained in this Agreement. These terms, together with the DPA and all Orders, constitute the “Agreement” between the parties.
1. Services
1.1. Subject to the terms of this Agreement, Keelvar shall provide to Customer the services described in Exhibit A – Part 1 (the “SaaS Services”) in accordance with the Service Level Agreement set out in Exhibit A – Part 2.
1.2. Subject to the terms hereof, Keelvar shall provide Customer with technical support services in accordance with the terms set forth in Exhibit B (“Support Services”).
1.3. The parties may from time to time agree that a Statement of Work (an “SoW”) shall be drawn up to govern the performance by Keelvar of particular development or other services (“Professional Services”). Each such SoW shall be in the format set out in the template shared by Keelvar and shall set out the requirements, specifications and scope of the work to be carried out by Keelvar. Upon an SoW being signed by both parties, it will become binding on the parties and forms part of this Agreement. Either party may request a change to the nature and scope of services covered by an SoW. Any such request shall be sufficiently detailed to enable the other party to assess the impact of the proposed change. No such change shall become effective until agreed in writing between the parties.
1.4. For the purposes of this Agreement, “Services” means collectively the SaaS Services, Support Services, and Professional Services (if any).
1.5. Security: Keelvar shall use all reasonable endeavours to maintain the security and privacy of SaaS Services. Keelvar will establish and maintain technical and organizational security measures in accordance with ISO/IEC 27001 and ISO/IEC 27701. These measures are designed to protect Customer data from unauthorized use, access, modification, disclosure, or destruction. Keelvar will maintain a security program that includes independent third-party audit reports. Considering the scope and nature of the processing, Keelvar’s technical and organizational measures to protect Customer data are available at: https://www.keelvar.com/security . While ensuring no deterioration in level of controls, these measures are to be updated from time to time to keep up to date with security and privacy best practices and technologies.
1.6. With regard to the handling of any Personal Data, unless otherwise agreed to in writing, the parties mutually acknowledge that Keelvar standard Data Processing Agreement (available at: https://www.keelvar.com/legal/dpa ) will be in effect.
2. Restrictions
2.1. Customer shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, made available by Keelvar in providing the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Keelvar or authorised within the Services); (iii) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iv) access all or any part of the Services in order to build a product or service which competes with the Services; or (iv) remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer, Keelvar hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services and provided always that the maximum number of Licensed Users or Events shall not exceed the number specified in the Order Form. For these purposes, “Licensed Users” means those employees and independent contractors of Customer who are authorised by Customer to use the Software.
2.2. Where agreed in the applicable Order Form, Customer may authorise one or more of its Affiliates to access and use the Services provided under that Order Form. Any such authorised Affiliate’s use of the Services shall be subject to the terms of this Agreement. Customer shall ensure that each Affiliate complies with the Agreement and shall remain fully responsible and liable for any acts or omissions of such Affiliates as if they were the acts or omissions of Customer.
3. Customer's Obligations
3.1. Customer shall: (i) co-operate with Keelvar in all matters relating to the Services; (ii) where required to enable Keelvar to supply the Services, provide for Keelvar, its agents, sub-contractors and employees, in a timely manner and at no charge, access to Customer’s premises, data and other facilities requested by Keelvar and agreed with Customer; (iii) provide, in a timely manner, all necessary information, data and documents reasonably requested by Keelvar for the proper performance of the Services (“Input Material”) within sufficient time to enable Keelvar to perform those Services; (iv) be responsible for ensuring the accuracy and completeness of all Input Material and Keelvar shall be entitled to rely upon the same as being accurate and complete without verification; (v) be responsible for ensuring that Customer has all necessary right, title, interest and consent necessary to allow Keelvar to use the Input Material for the purposes of fulfilling its obligations under the Agreement; (vi) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services; and (vii) be responsible for maintaining the security of Customer’s account, passwords (including but not limited to administrative and user passwords) and files and for all uses of Customer’s account with or without Customer’s knowledge or consent.
3.2. If Keelvar’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer, its agents, sub-contractors or employees, Keelvar shall not be liable for any costs, charges or losses sustained or incurred by Customer arising directly or indirectly from such prevention or delay.
3.3. Keelvar shall not be liable for any failure to adhere to any applicable timetable set out in an SoW or to perform the Services to the extent that such failure is attributable to Customer failing to fulfil the requirements in Section 3.1.
3.4. Access to the SaaS Services is provided subject to Customer’s compliance with the Usage Policy as set out at https://www.keelvar.com/legal/usage-policy.
3.5. Access to AI features as part of the Services is provided subject to Customer’s compliance with the AI Annex as set out at https://www.keelvar.com/legal/ai-annex.
4. Confidentiality; Proprietary Rights
4.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Keelvar includes non-public information regarding features, functionality and performance of the Services and/or the Software. Proprietary Information of Customer includes the Input Material and other non-public information received in connection with the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information; and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document: (a) is or becomes generally available to the public by no breach of the Receiving Party: or (b) was in its lawful possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or (e) is required to be disclosed by law, rule, regulation or official request by any governmental, administrative or regulatory authority.
4.2. Customer shall own all right, title and interest in and to the Input Material. Keelvar shall own and retain all right, title and interest in and to: (a) the Services and Software and all improvements, enhancements or modifications thereto; (b) any software, applications, inventions or other technology developed in connection with the Services or support; (c) all documents, products and materials used or developed by Keelvar in relation to the Services in any form (including computer programs, data, reports and specifications); and (d) all intellectual property rights related to any of the foregoing.
4.3. Notwithstanding anything to the contrary, Keelvar shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Input Material and data derived therefrom), and Keelvar may use such information and data to improve and enhance the Services and for related development, diagnostic and corrective purposes in connection with the Services and other Keelvar offerings; and provided it will use such data solely in aggregate or other de-identified form, use such data in connection with its business. No rights or licences are granted except as expressly set forth herein.
4.4. Keelvar agrees to indemnify and keep Customer fully indemnified against all liabilities to third parties resulting from infringement by the Services of any patent or any copyright or any misappropriation of any trade secret, provided Keelvar is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defence and settlement. Keelvar will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services: (i) not supplied by Keelvar; (ii) made in whole or in part in accordance with Customer specifications; (iii) that are modified after delivery; (iv) combined with other products, processes or materials where the alleged infringement relates to such combination; (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be, or reasonably believed by Keelvar to be infringing, Keelvar may, at its option: (a) replace or modify the Services to be non-fringing provided that such modification or replacement contains substantially similar features and functionality; (b) obtain for Customer a licence to continue using the Services; or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services.
4.5. Each party will implement and maintain appropriate technical and organizational measures against unauthorised or unlawful processing of data of the other party and against accidental loss or destruction of or damage to any such data. Such measures will ensure a level of security reasonably appropriate to the risk represented by the processing and the nature of the data to be protected.
5. Payment of Fees
5.1. Customer will be invoiced by Keelvar for the fees set out in the Order Form (“Fees”).
5.2. If Customer believes that Keelvar has billed Customer incorrectly, Customer must contact Keelvar no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
5.3. Full payment for invoices by Keelvar issued in any given month must be received by Keelvar thirty (30) days after the invoice date. If Customer fails to make payment due to Keelvar under the Agreement by the due date for payment, then, if the payment remains outstanding thirty (30) days from the Customer's receipt of a written reminder by Keelvar (such reminder not to be sent before the due date for payment) the Customer shall pay interest on the overdue undisputed amount at the rate of four per cent (4 %) per annum.
5.4. Unless otherwise agreed by Keelvar in writing, all Fees and other amounts payable by the Customer under this Agreement are exclusive of any VAT or equivalent sales tax. Customer shall make all payments due under this Agreement in full without any withholding or any deduction whether by way of set-off, counter claims, discount, abatement or otherwise. Customer is responsible for all taxes, including sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer, other than any taxes imposed on Keelvar’s net income. To the extent that Keelvar is required by law to pay any such taxes duties or other charges to any governmental or regulatory authority, Keelvar may invoice Customer for such taxes, duties, or other charges and Customer will pay such invoiced amounts in accordance with this Agreement.
5.5. For the avoidance of doubt, while Keelvar will use all reasonable efforts to comply with Customer’s standard billing procedures (for example, purchase order procedures), Keelvar’s invoices must nevertheless be paid within the time period set out in Section 5.3.
6. Term and Termination
6.1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term comprising all periods as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term. After the Initial Service Term, fees for renewal periods will increase as agreed between the parties.
6.2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of non-payment), if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within the thirty (30) day period. Customer will pay in full for the Services up to and including the last day on which the Services are provided.
6.3. On termination of this Agreement, for any reason: (i) Customer shall immediately pay to Keelvar all of Keelvar’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Keelvar may submit an invoice which shall be payable immediately upon receipt; (ii) Customer shall, upon the request of Keelvar, forthwith return to Keelvar all documents, information and materials provided by Keelvar relating to the Services; and (iii) Keelvar shall, if requested by Customer, either delete data previously provided to it by Customer or make such data available for electronic retrieval by Customer.
6.4. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, disclaimers and limitations of liability.
7. Acknowledgement and Indemnity
7.1. Customer acknowledges, agrees and undertakes that: (i) Keelvar only offers a software tool to facilitate Events; (ii) Customer shall be solely responsible for ensuring that Licensed Users use the Services strictly in accordance with the terms and conditions of this Agreement and shall be responsible for any Licensed User’s breach of this Agreement; (iii) the actions of Customer and any supplier or other third party are outside the control of Keelvar; (iv) Keelvar takes no responsibility for any third party data or contracts relating to any Event and that this is a matter strictly between Customer and its selected supplier; (v) any Event and any associated materials in respect of Events are provided on the instruction of Customer and are not and do not include representations, actions or statements of Keelvar and are not binding on Keelvar; (vi) Keelvar is not an agent of the Customer and acts exclusively as a facilitator of Events, enabling suppliers to prepare financial proposals and purchasers to evaluate outcomes; and (vii) Keelvar has no liability in connection with any relationship between any supplier and Customer formed as a result of an Event.
7.2. Customer agrees to indemnify and keep Keelvar fully indemnified upon demand against all liabilities, losses, actions, proceedings, costs, claims, demands and expenses brought or made against or incurred by Keelvar as a result of or arising from or in connection with: (i) any third party claims arising from Customer’s acts or omissions during an Event or any part thereof or any information provided by Customer; (ii) any contracts entered into by Customer as a result of the use of the Software or Services; (iii) Customer’s use of the Services and (iv) claims alleging that use of the Customer data infringes the rights of, or has caused harm to, a third party.
7.3. This Section 7 shall survive termination of this Agreement, however arising.
8. Warranty and Disclaimer
8.1. Keelvar undertakes to use reasonable efforts consistent with prevailing industry standards to maintain the SaaS Services in a manner which minimises errors and interruptions in the SaaS Services.
8.2. KEELVAR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES NOR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND KEELVAR DISCLAIMS ALL WARRANTIES, TERMS AND CONDITIONS EXPRESS OR IMPLIE00D, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Liability
9.1. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN ANY MANNER, REGARDLESS OF THE BASIS OF THE CLAIM (WHETHER IN CONTRACT, TORT, OR OTHERWISE) FOR SPECIAL, PUNITIVE OR INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF OPPORTUNITIES, LOSS OF DATA) HEREUNDER.
9.2. EXCEPT AS PROVIDED BELOW, KEELVAR’S TOTAL LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) MISREPRESENTATION, RESTITUTION OR OTHERWISE ARISING UNDER OR IN ANY WAY CONNECTED WITH THIS AGREEMENT SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO KEELVAR UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY UNDER THE AGREEMENT.
9.3. The exclusions and limitations of liability set forth above shall not apply to, limit or exclude either party’s liability for: (i) death or personal injury caused by its negligence (including the negligence of its employees, agents and sub-contractors); (ii) breaches of confidentiality and indemnity obligations or (iii) any other liability which cannot be excluded or limited under applicable law.
10. Applicable Law
10.1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Ireland.
10.2. The parties irrevocably agree that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims.
10.3. The parties shall attempt to resolve any dispute arising out of or relating to this contract through negotiations between senior executives of the parties, who have authority to settle the same. If the matter is not resolved by negotiation within thirty (30) days of receipt of a written ‘invitation to negotiate’, the parties will attempt to resolve the dispute in good faith by referring the dispute to mediation by an independent person. Unless otherwise agreed between the parties, the mediator will be nominated by the President of the Law Society of Ireland. If the matter is not resolved through mediation, either party may then refer the dispute to the courts.
11. Miscellaneous
11.1. Severability: If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.2. Assignment: This Agreement is not assignable, transferable or sublicensable by Customer except with Keelvar’s prior written consent. Keelvar may transfer and assign any of its rights and obligations under this Agreement without consent.
11.3. Entire Agreement: This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
11.4. No Partnership: No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Keelvar in any respect whatsoever.
11.5. Notices: All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail (in the case of notices to Keelvar, to be sent to notices@keelvar.com ); the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by registered post.
11.6. Press Release: Within ninety (90) days of the Effective Date, both parties will work together in good faith to collaborate on a mutually agreed press release. Customer will also reasonably support Keelvar as a reference. Customer also agrees that: (i) Keelvar may use customer company logo on its website; (ii) Customer’s name may appear in Keelvar’s standard press boilerplate; and (iii) Customer will consider promotional activities such as webinars, testimonials, media interviews or case studies on mutual agreement.
11.7. Force Majeure: Neither party shall have liability to the other under this Agreement if it is prevented from or delayed in performing its obligations (other than payment obligations) under this Agreement due to circumstances beyond its reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protest, riot, civil commotion, fire, explosion, flood, epidemic. lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that if the event in question continues for a continuous period in excess of thirty (30) days, either party shall be entitled to give notice in writing to the other to terminate this Agreement.
Exhibit A
(Services and SLA)
Part 1 - Services
Keelvar provides a software as a service (SaaS) solution for supporting RFI, RFQ/RFT and eAuction sourcing events. The SaaS solution includes an optimization engine for enhancing economic efficiency through rich bid data capture and powerful evaluation. Scenario analysis and reporting functionality provide for strategic investigation of possible award outcomes and iterative rounds of bidding with automated feedback and controls.
Part 2 - Service Level Agreement
Keelvar offers a Service Level Agreement for its SaaS products which can be found at https://www.keelvar.com/legal/service-level-agreement
Exhibit B
(Support Terms)
General Support and Help Desk
• Remote training for Customer.
• Help Desk availability for Customers users and Suppliers users during the hours of 8:00am-10:00pm GMT/UTC.
Help Desk and Operations Centre Support
Unless otherwise communicated, the following should be used to contact Helpdesk/Operations Centre:
Email: support@keelvar.com
Online (registration necessary): https://support.keelvar.com/hc/en-us
Software Maintenance and Upgrade Services
Keelvar will provide complete software maintenance and upgrade services to Customer automatically in new releases as standard.
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