Selected Practices:
ACQUIS TERMS OF SERVICE FOR ACQUISLINK
These Terms of Service (the “TOS”) together with the applicable Order Form (defined below) constitute the binding agreement (this “Agreement”) between Acquis Consulting Group, L.L.C. (“Acquis”) and the entity identified in the applicable Order Form (“Client”) and is as of the “Effective Date” set forth in the Order Form.
Client’s use of and Acquis’ provision of the Connector (as defined below) are governed by this Agreement.
Capitalized terms used in these TOS and not defined herein shall have the meanings ascribed to such terms in the Order Form. To the extent there is any conflict between the terms of these TOS and the terms of the Order Form, these TOS shall take precedence with respect to all matters related to the Connector and Client’s usage thereof.
In the event Client has entered into a separate master services agreement (an “MSA”) with Acquis for Acquis’ provision of consulting services to Client, such MSA shall be treated as a separate and distinct contract from this Agreement for all purposes related to the Connector.
1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement:
1.1 “Active Connection” means any third-party system connected to the Connector that transmits data to or from the Connector.
1.2 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity; and “control” for the purposes of this definition means direct or indirect ownership or control of more than fifty percent (50%) of the voting interest of the subject entity, provided that any such Affiliate shall be deemed an Affiliate only for so long as such control lasts. Client Affiliates may purchase subscriptions to the Connector that are subject to the terms and conditions of this Agreement by executing an Order Form hereunder.“
1.3 “Client Data” means the data and information provided by Client or any of its Users through the Connector
1.4 “Connector” means Acquis’ web-based application for the connection of Client’s Coupa instance licensed from Coupa Software, Inc. (“Coupa”) with Client’s ERP noted on the Order Form, including, without limitation, all computer software programs, algorithms, workflows, interfaces, APIs, information management tools, plug-ins, add-ons, code and data incorporated therein, and all portions of the hosting environment through which such application is provided.
1.5 “Documentation” means Acquis’s product documentation relating to the operation and use of the Connector and the Services, including technical program or interface documentation, operating instructions, update notes, and support knowledge base, each as updated from time to time by Acquis.
1.6 “Feedback” means any suggestion or idea for improving or otherwise modifying any of Acquis’s products or services.
1.7 “Order Form” means an order form mutually executed by the parties evidencing the purchase of subscriptions to the Connector and any related Services specifying, among other things, the Term, the applicable fees, and the billing period as agreed to between the parties. Each Order Form, once mutually executed, shall be governed by and become part of this Agreement, and is hereby incorporated by this reference.
1.8 “Privacy Policy” means Acquis’s privacy policy, currently posted at https://www.acquisconsulting.com/privacy_policy.
1.9 “SLA” means Acquis’s standard service level agreement attached as Exhibit A.
1.10 “Support” means the technical support as specified on the Order Form.
1.11 “Term” is defined in Section 10.1 below.
1.12 “Updates” means updates of the Connector for repairs, enhancements or new features applied by Acquis, including updates to the Documentation as a result of such updates, at no additional fee during the Term. Updates shall not include additional new functionality or upgrades to modules or applications that Client has not already subscribed to in an Order Form and for which Acquis requires a separate charge from its other clients generally for such new features or applications.
1.13 “User” means any individual who uses the System on Client and its Affiliates and their employees, representatives, consultants, contractors, subcontractors, or agents who are authorized to use the Connector and the Services by Client or its Affiliates in support of Client’s and its Affiliates’ business operations.
1.14 “Virus” means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.15 “Vulnerability” means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability.
2. THE CONNECTOR & SERVICES.
2.1 Use of the Connector. During the Term, Client may access and use the Connector pursuant to the terms of any outstanding Order Form, including any implementation and support services as described in the Order Form, including any implementation and support services as described in the Order Form (collectively, the “Services”). Licensing for the Connector is restricted to the number of Active Connections of Client as described in the applicable Order Form (the “Authorized Seats”) for the Subscription Term and subject to any other restrictions set forth in the Order Form. Upon reasonable notice, Acquis shall have the right to audit, at Acquis’ expense, Client’s use of the Connector and Services to ensure past and ongoing compliance with this Agreement. 2.2 Service Levels. Acquis shall provide the remedies listed in the SLA for any failure of the Connector to operate. Such remedies are Client’s sole remedy for any failure of the Connector or the Services. Credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeited upon termination of this Agreement. Acquis is not required to issue refunds or to make payments against such credits under any circumstances, including, without limitation, after termination of this Agreement.
2.3 Documentation: Client may reproduce and use the Documentation solely as necessary to support Client’s use of the Connector in accordance with the terms of this Agreement and for no other purpose.
2.4 Connector Revisions. Acquis may revise the Connector’s features and functions at any time, including, without limitation, by removing such features and functions. If any such revision to the Connector materially reduces the features or functionality of the Connector, Client may within 30 days of notice of the revision terminate this Agreement without cause.
PAYMENT.
3.1 Subscription Fees. Client shall pay Acquis the fees set forth in each Order Form (the “Subscription Fee”) for each Subscription Term in accordance with the payment terms contained in the Order Form and this Agreement, along with any one-time installation and configuration fees. Client understands that Subscription Fees are due and payable annually in advance for use of the Connector and the Services. All payment obligations are non-cancellable, and all amounts paid are nonrefundable except as otherwise specified in this Agreement. Acquis shall issue invoices to Client as specified in the Order Form and Client agrees to pay such amounts in accordance with the payment terms as specified in the Order Form and if any such undisputed invoice is more than thirty (30) days overdue, Acquis may, without limiting its other rights and remedies, suspend Client’s use of the Connector and the Services until such undisputed invoice is paid in full; provided that the foregoing shall not apply to the non-payment of any amounts that are the subject of a good faith dispute between the parties. Client agrees to pay Acquis in the currency specified in the Order Form. If Client believes its invoice is incorrect, Client must contact Acquis in writing within thirty (30) days of the date of the invoice containing the amount in question and provide a reasonably detailed description of the subject of the dispute, to be eligible to receive an adjustment or credit.
3.2 Taxes. The Subscription Fees and all other charges described in an Order Form do not include federal, state or local sales, foreign withholding, use, property, excise, service, value-added or similar taxes (“Tax(es)”) now or hereafter levied (excluding Taxes based on Acquis’ net income), all of which shall be paid by Client. Acquis shall state, separately on its invoices, taxes excluded from the fees, and the Client agrees either to pay the amount of the taxes to Acquis or provide evidence necessary to sustain an exemption.
CONFIDENTIALITY, CLIENT DATA & PRIVACY.
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 “Confidential Information” of the Disclosing Party). Confidential Information of Acquis includes non-public information regarding the pricing, features, functionality and performance of the Connector and the Services. Confidential Information of Client includes Client Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services, delivery of the Connector or as otherwise permitted herein) or divulge to any third person any such Confidential 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, or (b) was in its 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 Confidential Information of the Disclosing Party, or (e) is required to be disclosed by a court of competent jurisdiction pursuant to applicable law or regulation, but only to the extent expressly required and only after alerting the Disclosing Party of such disclosure requirement (to the extent permitted by law) so that the Disclosing Party may seek to avoid or minimize the required disclosure and/or to obtain an appropriate protective order or other appropriate relief to protect the Confidential Information.
4.2 Use of Client Data. Unless it receives Client’s prior written consent, Acquis: (a) shall not access, process, or otherwise use Client Data other than as necessary to facilitate the Connector and the Services; and (b) shall not intentionally grant any third party access to Client Data, including without limitation Acquis’s other Clients, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Acquis may disclose Client Data as required by applicable law or by proper legal or governmental authority. Acquis shall give Client prompt notice of any such legal or governmental demand (to the extent permissible) and reasonably cooperate with Client in any effort to seek a protective order or otherwise to contest such required disclosure, at Client’s expense. As between the parties, Client retains ownership of Client Data.
4.3 Privacy Policy. The Privacy Policy applies only to the Connector and the Services as provided by Acquis and does not apply to any third party website or service linked to the Connector.
4.4 Data Accuracy. Acquis will have no responsibility or liability for the accuracy of data or content uploaded to the Connector by Client, including without limitation Client Data and any other data uploaded by Users.
4.5 Data Deletion. Acquis may permanently erase Client Data if Client’s account is delinquent, suspended, or terminated for thirty (30) days or more.
4.6 Aggregate & Anonymized Data. Notwithstanding the provisions above of this Section 4, Acquis may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. “Aggregate Data” refers to Client Data that has been aggregated with the data of others such that Client is not identifiable as the source, and with the following removed: personally identifiable information and the names and addresses of Client and any of its Users, customers, and suppliers.
CLIENT’S RESPONSIBILITIES & RESTRICTIONS.
5.1 Acceptable Use. Client shall not: (a) use the Connector or the Services for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Connector or the Services; (b) provide Connector passwords or other log-in information to any third party; (c) de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Connector or the Services; (d) share non-public Connector or Services features or content with any third party; (e) access the Connector or the Services in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Connector or Services, or to copy any ideas, features, functions or graphics of the Connector or the Services; or (f) engage in web scraping or data scraping on or related to the Connector or the Services, including, without limitation, collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Acquis may suspend Client’s access to the Connector and the Services without advanced notice, in addition to such other remedies as Acquis may have. This Agreement does not oblige Acquis to take any action against Client or any User or other third party for breaching the terms of this Section 5.1, or this Agreement, but Acquis may take any such action it sees fit.
5.2 Unauthorized Access. Client shall take reasonable steps to prevent unauthorized access to the Connector, including, without limitation, by protecting its passwords and other log-in information. Client shall notify Acquis immediately of any known or suspected unauthorized use of the Connector and the Services or breach of its security and shall use best efforts to stop said breach.
5.3 Compliance with Laws. In its use of the System, Client shall comply with all applicable laws, including without limitation, laws governing the protection of personally identifiable information, export restrictions and the non-infringement of third party intellectual property rights.
5.4 Users & Connector Access. Client is responsible and liable for: (a) Users’ use of the Connector and Services, including, without limitation, unauthorized User conduct and any User conduct that would breach the terms of this Agreement applicable to Client; and (b) any use of the Connector and the Services through Client’s account, whether authorized or unauthorized.
IP & FEEDBACK.
6.1 IP Rights to the Connector & Services. As between Acquis and Client, Acquis retains all right, title, and interest in and to the Connector and the Services, including, without limitation, all software used to provide the Connector and the Services and all graphics, user interfaces, logos, and trademarks reproduced through the Connector and the Services and any customizations to the Connector made at the request of Client. Any third-party trademarks used in connection with the Connector are the property of their respective trademark owners. This Agreement does not grant Client any intellectual property license or rights in or to the Connector and the Services or any of its components. Client recognizes that the Connector and its components are protected by copyright and other laws, and no right or license is granted to use them. Furthermore, this Agreement does not convey to Client any rights of ownership in or related to the Connector, Services or Documentation.
6.2 Feedback. Acquis has not agreed to and does not agree to treat as confidential any Feedback Client or Users may provide to Acquis. Acquis may freely use, profit from, disclose, publish, keep secret, or otherwise exploit any such Feedback without compensating or crediting Client or the User in question.
REPRESENTATIONS & WARRANTIES.
7.1 From Acquis. Acquis represents and warrants that it is the owner of the Connector and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the Connector and the Services set forth in this Agreement. Acquis’ representations and warranties in the preceding sentence do not apply to use of the Connector in combination with hardware, applications or software not provided by Acquis. In the event of a breach of the warranty in this Section 7.1, Acquis, at its own expense, shall promptly take the following actions: (a) secure for Client the right to continue using the Connector; (b) replace or modify the Connector to make it non-infringing; or (c) terminate the infringing features of the Services or Connector and refund to Client any prepaid fees for such features, in proportion to the unexpired portion of the Term following such termination. In the event that Coupa or Client’s ERP vendor restricts Acquis’s ability to offer the Connector, Acquis may refund to Client to any prepaid fees in proportion to the unexpired portion of the Term following such termination.
7.2 From Client. Client represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; and (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Connector.
7.3 Warranty Disclaimers. Except to the extent set forth in the SLA and in Section 7.1 above, CLIENT ACCEPTS THE CONNECTOR AND THE SERVICES “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) ACQUIS DOES NOT REPRESENT OR WARRANT THAT THE CONNECTOR OR THE SERVICES WILL PERFORM WITHOUT INTERRUPTION, ERROR, CORRUPTION OR LOSS OR INACCURACY OF DATA OR WILL BE FREE FROM VULNERABILITIES OR VIRUSES; AND (b) ACQUIS DOES NOT REPRESENT OR WARRANT THAT THE CONNECTOR AND THE SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CLIENT DATA WILL REMAIN PRIVATE OR SECURE.
LIMITATION OF LIABILITY
8.1 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S MAXIMUM LIABILITY TO THE OTHER UNDER THIS AGREEMENT SHALL BE THE RECOVERY OF ACTUAL DAMAGES UP TO THE AMOUNT PAID BY CLIENT (OR, IN THE EVENT OF A CLAIM BY ACQUIS, THE AMOUNT PAID OR OWED BY CLIENT) UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENTS THAT GAVE RISE TO SUCH CLAIM. THE FOREGOING LIABILITY LIMITATIONS SHALL NOT APPLY WITH RESPECT TO CLAIMS FOR INDEMNIFICATION UNDER SECTION 9.
INDEMNIFICATION.
9.1 Acquis shall hold Client harmless from liability to third parties resulting from infringement by the Services or the Connector of any United States patent or any copyright or misappropriation of any trade secret, provided Acquis 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 defense and settlement; Acquis will not be responsible for any settlement it does not approve in writing assuming that it assumes such control over the defense and agrees to so indemnify Client. The foregoing obligations do not apply with respect to portions or components of the Services or Connector (i) not supplied by Acquis, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified after delivery by Acquis, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of the Services or Connector is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services or Connector are held by a court of competent jurisdiction to be or are believed by Acquis to be infringing, Acquis may, at its option and expense (a) replace or modify the Services or Connector to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Services or Connector, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide Client a refund of any prepaid, unused fees for the Services or Connector.
9.2 Client shall hold Acquis harmless from liability to third parties resulting from the contents or nature of the Client Data, provided Client 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 defense and settlement; Client will not be responsible for any settlement it does not approve in writing assuming that it assumes such control over the defense and agrees to so indemnify Acquis.
TERM & TERMINATION.
10.1 Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue until all Order Forms subject to this Agreement have expired or terminated, unless this Agreement is earlier terminated in accordance with Section 10.2. Subscriptions commence on the subscription start date specified in the relevant Order Form and continue for the “Subscription Term” specified in the Order Form. Unless otherwise provided in the Order Form, Software Subscriptions shall automatically renew for additional periods of one-year (each, a “Renewal Period”) unless either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the relevant Subscription Term. The fees for each such Renewal Period shall increase by the Consumer Price Index but no more than seven percent (7%).
10.2 Termination for Cause. Each party may, immediately on notice, without liability to the other party, terminate this Agreement, in whole or in part, if the other party (i) fails to cure a material breach of this Agreement within ten (10) days of notice.
10.3 Effects of Termination. Upon termination of this Agreement, Client shall cease all use of the Connector and the Services and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Client to pay fees incurred before termination; (b) Sections 6 (IP & Feedback), 7.3 (Warranty Disclaimers) and 8 (Limitations of Liability) and (c) any other provision of this Agreement that expressly or by implication is intended to continue in force after its termination.
MISCELLANEOUS.
11.1 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. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. Neither party may assign this Agreement without prior written consent of the other, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however that either party may assign this Agreement and/or its rights hereunder, in whole or in part, without such consent, to an affiliate or subsidiary or in connection with a merger or sale or transfer of all or substantially all of its assets or the business that is the subject of this Agreement. Each party shall perform its obligations under this Agreement without setoff, deduction, recoupment, or withholding of any kind for amounts owed or payable by the other party, whether under this Agreement, applicable law, or otherwise and whether relating to the other party’s breach, bankruptcy, or otherwise. 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, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind Acquis in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. 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 facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. Exclusive jurisdiction and venue shall lie in the State of New York, County of New York, including the U.S. federal courts therein. Client agrees that Acquis may list Client as a client of Acquis on a representative customer list. Acquis may revise the Privacy Policy at any time by posting a new version of either on the portions of the Connector accessible by Client, and such new version will become effective on the date it is posted.
EXHIBIT A
SERVICE LEVEL AGREEMENT
Acquis will use commercially reasonable efforts to make the Connector Available (as hereinafter defined) as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), at least 99.5% of the time, measured on a 365 days per year, 24 hours per day basis, excluding only the time the Connector is not available as a result of one or more Permitted Exceptions (as hereinafter defined) (such minimum level of Availability, the “Minimum Availability Service Level”).
For purposes hereof, the following terms shall have the meanings set forth below:
“Available” or “Availability” means the Connector is available and operable for access and use by Client over the Internet in material conformity with its specifications. The Availability of the Connector is measured every 5 minutes by Acquis.
“Availability Percentage” for a Service Period is calculated as below:
(Total Number of Minutes in Service Period – Downtime)
Divided by
Total Number of Minutes in Service Period
“Downtime” means the number of minutes in a Service Period during which the Connector was not Available, other than as a result of one or more Permitted Exceptions.
”Permitted Exceptions” means any one or more of the following: (i) Client’s use of the Connector other than as authorized under this Agreement, which may include Client’s disconnection of the Connector from either Coupa or Client’s ERP services or Client undertaking a data migration without informing Acquis as required, (ii) failure of either the Coupa or Client’s ERP services; (iii) any failure of Client’s internet connectivity, (iv) internet or other traffic problems other than problems arising in or from networks actually or required to be provided or controlled by Acquis, (v) Client’s failure to meet any minimum hardware or software requirements specified in the Connector documentation, (v) scheduled maintenance for which Acquis has provided at commercially reasonable efforts to notify Client or (vi) weekdays (Monday through Friday) between 10:00 PM and 7:00AM EST or at any time during weekends (Saturday through Sunday).
Downtime is calculated from the time Client reported the lack of Availability to Acquis via the Acquis Help Desk until the Connector is again Available. If the Availability Percentage for a Service Period falls below the Minimum Availability Service Level then Client is entitled to financial compensation in the form of Service Credits as described below. Service Credits are based on the current Subscription Fee, prorated for the Service Period, and are calculated based on the deviation from the Minimum Availability Service Level.
Service Credits are the Client’s sole and exclusive remedy for any failure to meeting the Minimum Availability Service Level.
The failure to meet the Minimum Availability Service Level in any given Service Period shall result in the following Service Credits:
- Below 99.5% for each Service Period: 5% discount of the impacted Service Period Subscription Fee
- Below 97% for each Service Period: 10% discount of the impacted Service Period Subscription Fee
- Below 95% for each Service Period: 15% discount of the impacted Service Period Subscription Fee