This Master Agreement (further referred to as “MSA”) consists of the Main Agreement Terms (“MAT”), the Service Level Agreement (annex 1) and, if required, the Data Processing Agreement (further referred as “DPA”)

Main Agreement Terms

Definitions.

Agreement means this agreement and all other documents attached hereto;

Agreement Period means the duration of the Agreement as further set out in section 10, including both the initial agreement period and all successive agreement periods;

Corporate Metadata means data about the Customer’s use of the Services, including statistics such as aggregated value, call ID, number of transactions, type of transaction and trading partners;

Customer Data means the data the Customer is processing via the Services, such as energy meter readings, invoice data, payment files or user account details, among others;

Online Order means activation of Service or any other type of purchase of Professional services performed in another manner, for example from within the online Services;

Personal Data means any information that can be linked directly or indirectly to a natural person;

Proposal means an offer issued by Spitch and signed by the Customer regarding the provision of Services;

Service means the licenses and/or the professional service connected to;

User Account means a logged-in environment through which the Customer’s representative has access to the Service distributed or received via Spitch network and specific settings ordered by the Customer.

1. Introduction

1.1. SPitch AG provides speech recognition software solutions for Customers worldwide (Out-of-the-box Speech & Text Analytics solution as a Managed Service – hereinafter the “Service”)

1.2. This Agreement is entered into by and between the Customer by acceptance and SPitch AG.

1.3. The capitalized terms in this Agreement shall have the meaning outlined above.

2. Agreement authorization and acceptance

2.1. By signing this Agreement/placing an Online Order the Customer agrees to be bound by this Agreement. If you do not have the authority to sign the Agreement, you must not sign the Agreement or otherwise use or authorize any use of the Services.

2.2. The Customer may upgrade or order additional Services via any User Account from within the logged-in environment in the dedicated section link by placing an Online Order.

2.3. This Agreement will not apply if the Customer and SPitch AG have executed a separately negotiated agreement for the Services.

3. Right to use the Service

3.1. Subject to the Customer’s compliance with the terms and conditions of the Agreement, SPitch AG hereby grants the Customer a non-exclusive, non-transferable and non-sub licensable license to use the ordered Services, in Spitch designed cloud instance in Italy, solely within the Customer’s business during the Agreement period. SPitch AG reserves all rights not expressly granted, except for any mandatory statutory rights under applicable local legislation.

3.2. During the Agreement period, the Customer has the right to use the Services for the number of daily hours specified in the Proposal or Online Order.

3.3. Services are provided as standard “out of the box” solution “as is”, any customization services shall be subject to a separate agreement.

3.4. SPitch AG is an independent contractor, and nothing in this Agreement shall render it an employee, agent or partner of the Customer, and SPitch AG shall not hold itself out as such.

4. Payment and remuneration conditions

4.1. Unless otherwise have been agreed between the Parties, payment shall have been made no later than ten (10) days after the invoice date.

4.2. All payments shall be paid in full, without deduction of taxes or other fees that may be imposed by any government, unless applicable local legislation prohibits such deductions. Any such taxes and fees are the responsibility of the Customer.

4.3. In the event of a delay in payment, SPitch AG shall be entitled to charge late-payment interest on any overdue amount from the due date until the date of payment, which will be at the rate determined by applicable late payment interest legislation.

5. Intellectual property rights and know-how

5.1. SPitch AG retains all sole and exclusive ownership of, and all rights, title, and interest in the Services, including but not limited to, all copyrights, trademarks, proprietary rights and any other intellectual property rights related to the Services and anything developed or modified by SPitch AG or its Affiliates and provided to, or accessed by, the Customer. SPitch AG represents and warrants that the Services will not infringe or constitute a misappropriation of any third party’s rights.

5.2. SPitch AG may use Corporate Metadata to enhance the Services and to extend the partners network.

5.3. Customer permits SPitch AG to use the Customer name or logotype for general references to extend the partner network, including communicating externally that the Customer is a part of SPitch AG network.

5.4. Each Party shall indemnify the other Party against any loss or damage suffered or incurred by the indemnified Party as a result of any claim by a third party that the Service or anything else supplied by either Party under this Agreement infringes the intellectual property rights of any third party (“Third Party Claim“).

5.5. In relation to each Third-Party Claim:

• the indemnified Party must inform the indemnifying Party as soon as they become aware of a Third Party Claim and give the Indemnified Party as much information as they can in relation to it;
• the indemnified Party must not make any admissions in relation to the Third Party Claim without obtaining the permission of the indemnifying Party first; and
• if the indemnifying Party asks the indemnified Party to do so, the indemnified Party must let the indemnifying Party take over dealing with the Third Party Claim on behalf of the indemnified Party.

6. Confidentiality

6.1. Each Party undertakes during the Agreement Period and for five (5) years thereafter to not disclose any Confidential Information (as defined below) of the other Party without written consent from the other Party.

6.2. As used in this Agreement, “Confidential Information” means all non-public information received from the other Party which is marked or notified to the receiving Party as being confidential, together with any additional information which by its nature or the circumstances surrounding its disclosure would be considered to be of a confidential nature and in respect of SPitch AG, Confidential Information includes the Services and the documentation.

6.3. The receiving Party agrees that it shall keep all Confidential Information of the other Party strictly confidential and shall take all reasonable steps to safeguard the Confidential Information including, without limitation, those steps that it takes to protect its Confidential Information of a similar nature.

6.4. For the purpose of this Agreement, Confidential Information shall not include any information which:

• is otherwise already lawfully known to the receiving Party or is publicly available at the time of disclosure;
• becomes known to the general public after disclosure through no act of the receiving Party in breach of this Agreement;
• is disclosed to the receiving Party by a third party who is not, to the knowledge of the receiving Party, in breach of an obligation of confidentiality;
• was or is independently developed by the receiving Party and can be demonstrated to have been done so without the use of the Confidential Information disclosed by the disclosing Party; or
• is disclosed pursuant to applicable law or court order, provided the receiving Party at the request and expense of the disclosing Party uses reasonable efforts to limit such disclosure to the extent requested.

6.5. The receiving Party shall not disclose or otherwise provide any Confidential Information to any third party without the prior written consent of the disclosing Party.

6.6. The receiving Party agrees to limit its internal disclosure of Confidential Information only to those of its employees, consultants and advisors who reasonably need access to it. Each Party shall be responsible to the other Party for any breach of this Agreement by its own employees, consultants or advisors. The receiving Party warrants that these persons are informed of the confidential nature of the Confidential Information and are subject to non-disclosure obligations no less restrictive than those under this Agreement.

6.6. SPitch AG may disclose Customer Data or other Customer information to its Affiliates or, if the Software Services has been purchased by a SPitch AG Partner, to such Partner, provided that the Partner has corresponding confidentiality obligations towards SPitch AG.

6.7. Personal Data shall be processed in accordance with Data Processing Agreement.

7. Compliance with laws, rules and regulations

7.1. Each Party shall at all times comply with all applicable laws, rules and regulations in connection with each Party’s performance and activities under this Agreement. The Agreement shall be governed by Italian Law.

8. Force Majeure

8.1. If either Party is prevented from fulfilling its obligations under this Agreement due to circumstances which the Parties have no control over (e.g., including without limitation acts of terrorism, wars, riots or insurrection trade embargos, lightning strike, lockouts or other labour disturbances, fire, strike, communication or transport disruptions or natural disasters) that Party shall be released from its obligations under this Agreement until the circumstances that have given rise to its inability to fulfil its obligation is no longer applicable. If a Party is prevented from fulfilling its obligations for a period longer than thirty (30) calendar days due to any such circumstance mentioned above, the Party shall have the right to terminate the Agreement with immediate effect without being liable to pay compensation.

9. Limitation of Liability

9.1. If a Party does not fulfil its obligations under this Agreement, the other Party shall be entitled to claim damages.

9.2. Each Party must, to the greatest extent possible, mitigate its losses incurred under or in connection with the Agreement.

9.3. Neither Party will be liable for lost revenues or profits, loss of anticipated savings, loss of goodwill, downtime costs, business interruption, diminished business value nor for any indirect, exemplary, punitive, special, or consequential losses of any Party, including third parties, even if a Party has been advised of the possibility of such losses.

9.4. In any event, to the extent permitted by Applicable law, SPitch AG Group’s entire liability for any cause of action or non-action shall be limited, in the aggregate, to the value paid by the Customer to SPitch AG for the Services under the Proposal.

9.5. This section 9 shall survive the expiration or termination of the Agreement.

10. Agreement Period

The Agreement will be in effect from acceptance of the Agreement as determined in accordance with section 2 and shall run for so long as the Customer uses Services.

11. Suspension of the Services

Subject to seven (7) days prior notification, SPitch AG may suspend the Customer’s access to the Services if:

• the Customer does not fulfil its payment obligation,
• the Customer commits any other material breach of the Agreement.

12. Termination of the Agreement

Either Party may terminate the Agreement with immediate effect upon written notice if:

• the other Party materially breaches any provision of the Agreement and, if the breach is curable, fails to cure such breach within ten (10) days, or
• the other Party repeatedly or continuously fails to meet their obligations under the Agreement and does not at the other Party’s request remedy such failures within ten (10) days, or
• the other Party has provided incorrect or misleading information, or has concealed circumstances of importance, or
• the other Party, or its representatives, are suspected of having committed a criminal offence in connection with the performance of the Agreement or usage of Services, or
• the other Party is expected to become bankrupt, enter into corporate or composition proceedings, suspend payments or otherwise be deemed insolvent or have significant financial difficulties.

13. Document hierarchy

13.1. This Agreement consists of the following documents, and in the event of a conflict between the provisions of these documents, they shall be given precedence in the order listed below:

• An Online Order
• The Main Agreement Terms (MAT)
• The Data Processing Agreement (DPA) and incorporated appendices,
• The applicable Service Level Agreement (SLA),
• Other agreed appendices

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Annex 1. Service level agreement

SERVICE LEVEL AGREEMENT (“SLA”)

Support Service.

Support Services shall be provided by properly qualified personnel with the aim of maintaining the Service in a suitable condition for the intended use in accordance with Managed Service Agreement (the “MSA”) and with the conditions of use below.

Conditions of use

The CUSTOMER is responsible for the support, maintenance, and monitoring of the dedicated (their own) LAN and or WAN. SPitch bears no responsibility for performance and availability problems on networks within the CUSTOMER’s control.

Service Hours

The normal service hours consists of Monday to Friday from 9 a.m. to 5 p.m. CET (“9×5 Support”).

List of Support Services

The following services are included in Support Services:

• Error Resolution
• Software Updates
  Software Updates are minor enhancements, additions, to Service, including corrections of safety issues and bug fixes are provided at no additional fee, if available.
• Special or additional services
  Any support services in addition to those set forth herein will be provided for additional fee negotiated the parties.

Support Levels

Service Support is provided at three Levels as more fully defined below.

• “Level 1 Support” means the service provided in response to the initial inquiry from a CUSTOMER regarding software purchased from SPitch or which identifies and documents a reported problem in that Licensed Software.
• “Level 2 Support” means the service provided to analyze or reproduce the reported problem or to determine that the reported problem is not reproducible. Level 2 Support also means resolving any Customer issue caused by a defect in the SPitch software when SPitch has provided an electronic notice of the defect and the needed support action to CUSTOMER’s designated personnel.
• “Level 3 Support” means the service provided to isolate the reported problem to a component Level of the Licensed Software, provided such reported problem is reproducible by the CUSTOMER and/or SPitch and does not relate solely to enhancements or other modifications made by the CUSTOMER. Level 3 Support will also include the creation of modifications to the SPitch software that enable the temporary or permanent resolution of a defect in the Spitch software for which a resolution has not been electronically distributed to Licensee’s designated personnel.

Classification of Errors

Severity Levels overview

1. Critical – Error preventing or severely disrupting the use of the SPitch software or Service or any major functionality for its intended purpose (including complete loss of operation).
2. Non-Critical – Error with no or only trivial impact on the use of a software/access to Service, in whole or in part, for its intended purpose.

Response times

Upon identification of an Error, CUSTOMER will notify SPitch and provide SPitch with sufficient information to locate and reproduce the Error. SPitch shall provide CUSTOMER with service of resolution of Errors occurred during operation of the Licensed Software/access to the Service. SPitch shall use best efforts to respond to service requests and resolve Errors in accordance with the times set forth below:

The obligations of CUSTOMER under SLA

CUSTOMER is obligated to:

• Provide SPitch with reasonable telephonic or remote access to CUSTOMER’s personnel and equipment interacting with the SPitch software and the Service
• Document and report Errors or malfunctions of the SPitch software and Service to SPitch;
• Train its personnel in the use of the SPitch software and the Service;

The obligations of Spitch:

• Respond to support requests within the timescales listed above;
• Use best efforts to escalate and resolve issues in an appropriate, timely manner;
• Maintain efficient communication with CUSTOMER at all times.