Updated as of June 2022
These Innovation Services Terms of Service (“Innovation Service Terms“) govern the Customer’s use of Netsurit Innovation Services. By subscribing to or using Netsurit Innovation Services, the Customer agrees to be bound by the proposal accepted by the Customer (the “Order”), these Innovation Service Terms and the Netsurit Master Services Agreement (the “MSA”) all of which shall be deemed to govern the relationship between the Parties in relation to the provision of the Netsurit Innovation Services.
1. DEFINITIONS
Terms defined in the Order and the MSA shall have the same meaning when used in these Innovation Service Terms and in addition the following definitions will apply:
1.1. “Agile Development” means an iterative software development. Iterative software development shortens the DevOps lifecycle by executing against work in smaller increments, usually called sprints. Sprints are typically 1-4 weeks long.
1.2. “Costs” means (a) the costs incurred by Netsurit in procuring any software licenses and/or equipment as part of a Task for and at the written request and cost of the Customer, which software licenses and/or equipment (as the case may be) shall be specified in the Order; and/or (b) the additional charges levied by Netsurit for the provision of the Netsurit User Adoption Service and/or NSPARK as part of the Netsurit Innovate Service;
1.3. “Return on Innovation Guarantee” (“Guarantee”) means the guarantee proposed by Netsurit, and accepted by the Customer in the updated Order in accordance with and subject to the provisions of clause 5 below;
1.4. “Service Fee” means the standard Fee payable on a monthly basis by the Customer to Netsurit as set out in the Order;
1.5. “Service Period” means the Initial Service Period together with any renewal thereof as contemplated in clause 3; and
1.6. “Task” means any digital transformation initiative and corresponding service requirements that are stipulated in the Order as being identified and agreed to between the Parties and which shall be implemented by Netsurit as part of the Netsurit Innovate Service (including, but not limited to, regular Agile Development engagements between the Parties, user acceptance testing and the procurement of any software licenses and/or equipment required for the purposes of achieving an agreed digital transformation initiative, as set out in the Order).
2. NETSURIT INNOVATION SERVICES
2.1. Netsurit offers a range of innovation services consisting of, the following services and collectively defined as the “Netsurit Innovation Services” or the “Services”:
2.1.1. Netsurit Innovate Service, comprising of (a) a “Return on Innovation Workshop” and automation assessment; and (b) the roll-out of bespoke digital transformation initiatives that optimize or build on a Customer’s existing product stack; and
2.1.2. Netsurit User Adoption Service, comprising of the roll-out of user training and organizational change management techniques to embed the above digital transformation initiatives (provided at the discretion of Netsurit and in accordance with the needs of the relevant Customer, subject to any additional charges and any terms and conditions specified in the relevant Order); and/or
2.1.3. Netsurit Productivity Monitor (NPM), comprising a cloud native (SaaS) productivity monitoring and awareness tool that analyzes data from local devices (via an agent) and Microsoft 365 (via the cloud) to provide insights into the productivity and well-being of a team and organization (provided at the discretion of Netsurit, in accordance with the needs of the relevant Customer and free of any additional charges if provided as part of the Netsurit Innovation Services, subject to any terms and conditions specified in the Order); and/or
2.1.4. NSPARK, comprising a SaaS ideation application that allows a facilitator to setup a challenge and invite team members to join the challenge for idea capture and voting and thereby contribute meaningfully to the creative process of generating, developing and voting on new ideas (provided at the discretion of Netsurit and in accordance with the needs of the relevant Customer, subject to any additional charges and any terms and conditions specified).
3. TERM
3.1. Initial Service Period: These Innovation Service Terms will commence on the date of Customer’s acceptance of the Innovation Service Terms by electronic or written means and shall continue for a period of TWELVE (12) consecutive months from date of acceptance, the Initial Service Period.
3.2. Renewal: At the end of the Initial Service Period and each subsequent Service Period, the term shall automatically renew for an addition TWELVE (12) month Service Period (each a “Renewal Period”) unless notice of cancellation is received by Netsurit no later than SIXTY (60) calendar days prior to the expiry of the Initial Service Period or relevant Renewal Period, as the case may be.
3.3. Application and Validity of Innovation Service Terms: These Innovation Service Terms shall apply and remain valid for the full duration of a Service Period and any period beyond a Service Period for which any Return on Innovation Guarantees remain valid.
4. SERVICE LEVEL
4.1. Mapping: Within the first month of the Initial Service Period or such other period as the Parties may agree to in the Order, Netsurit shall arrange and conduct a Return on Innovation Workshop and an initial automation assessment with the Customer to assess the Customer’s digital transformation needs. At any time during a Service Period as agreed between the Parties in the Order, Netsurit shall provide the Customer with periodic updates to such automation assessment. Unless otherwise agreed between the Parties in the Order, no Return on Innovation Workshop and initial automation assessment with the Customer shall be conducted outside the Initial Service Period.
4.2. Task Scheduling: Upon completion of the Return on Innovation Workshop and initial automation assessment, the Parties shall, identify and agree on the following:
4.2.1. Tasks for implementation by Netsurit during the Service Period;
4.2.2. A Return on Innovation Guarantee per Task; and
4.2.3. An implementation schedule for such Tasks.
4.3. Task Implementation: Upon agreement being reached between the Parties, and subject to these Innovation Service Terms, Netsurit shall commence implementation of the Tasks as per the above implementation schedule.
4.4. Task Completion: A Task will be considered complete once all requirements specified for such Task have been met and Netsurit has determined, in its sole discretion and after consultation with the Customer and communicated to the Customer in writing, that all requirements specified for such Task have been met. Netsurit’s discretion in this regard shall be exercised reasonably.
4.5. Changes to Tasks and Task Scheduling: In the event that the Customer requires changes to be effected to the Tasks and/or the implementation schedule specified in the Order during a Service Period, such changes, together with any corresponding changes to the relevant Return on Innovation Guarantees required by Netsurit, shall be discussed and agreed to in advance between the Parties in an updated accepted Order (which updated Order shall replace any prior Orders agreed to between the Parties in relation to the Netsurit Innovation Services). No such changes shall be effective unless agreed to in an updated Order signed by both Parties.
5. RETURN ON INNOVATION GUARANTEE:
5.1. Return on Innovation Guarantee Workshop:
5.1.1. Within ONE (1) month of the acceptance by the Customer of the Order (“Acceptance Date”) the Customer and Netsurit will meet to finalize the Tasks. Should the Customer accept the Guarantee proposal, the Order shall be updated to include the details of the Guarantee and signed by both Parties. Should the Customer not accept the Guarantee, it shall have the right to terminate the Innovation Service Order at the end of the first month after the rejection of the proposed Guarantee.
5.1.2. Should the Parties not agree on the Tasks within the first month of the Acceptance Date, the Guarantee shall not be applicable for the Initial Service Period. The Parties may agree in writing after the Acceptance Date at the beginning of any Renewal Period to negotiate future Tasks and Guarantees.
5.2. The Return on Innovation Guarantee:
5.2.1. The Guarantee shall become effective on the date on which the Tasks for which such Guarantee was provided are considered complete in terms of clause 4.4 above and shall remain valid for a period of TWELVE (12) consecutive months subject to the quarterly review by the Parties of the Guarantee and the results of the Innovation Services against such Guarantee. Any adjustments to the Guarantee or any Tasks required to meet such Guarantee shall be agreed by the Parties and signed as an addendum to the Guarantee.
5.2.2. Should the Guarantee not be met by the end of the Initial Service Period (or Renewal Period, as the case may be), Netsurit shall, at its cost, continue to provide the Services until such Guarantee is met, subject to a maximum of THREE (3) months. In this regard, the Customer shall receive an invoice and a corresponding credit note for each month in this THREE (3) month period until the Guarantee is met or the expiry of the THREE (3) month period, whichever is the earlier. Should the Guarantee still not be met at the end of this period, the Customer shall have the option to (i) terminate the Services with immediate effect; or (ii) continue to receive the Services in accordance with these Innovation Service Terms, including, without limitation:
5.2.2.1. those relating to the Guarantee, which Netsurit will continue to work towards to the extent any Task is not completed/Guarantee is not met, where the value received by the Customer as a result of a Task/s completed in the Initial Period shall continue to accumulate towards the Guarantee in subsequent Renewal Periods; and
5.2.2.2. those relating to the Service Fee and Costs and the early termination provisions of clauses 6 and 7 respectively.
5.2.3. The Parties agree that the Guarantee shall not apply to, or in respect of, any errors or defects occurring in the Customer’s systems and/or any delays in the completion of any Task resulting from:
5.2.3.1. The Customer failing to follow Netsurit’s written advice and/or instructions with regard to the Netsurit Innovation Services or any part thereof;
5.2.3.2. Any modifications or enhancements to the Netsurit Innovation Services (or any part thereof) not made by or with the written approval of Netsurit;
5.2.3.3. The failure by the Customer to install any upgrade, bug fix or update required for the purposes of maintaining and securing its IT systems, processes and infrastructure;
5.2.3.4. The abuse, negligent use or misuse of the Netsurit Innovation Services (or any part thereof), and/or the Customer’s systems, by the Customer or any third party;
5.2.3.5. Any decision taken unilaterally by the Customer to suspend or terminate the implementation of a Task; and/or
5.2.3.6. Any other act or omission on the part of the Customer or any third party; and
5.2.4. Be honoured by Netsurit in the event that Netsurit fails to complete a Task in accordance with the Order, subject to clause 5.2.2 above.
5.2.5. Notwithstanding the foregoing, Netsurit shall be entitled, at any time and for any reason whatsoever, to retract/cancel the Guarantee, provided that it shall credit the Customer with an amount equal to Service Fee paid or payable by the Customer for the month preceding the date on which Netsurit elects to exercise this right.
5.2.6. For the avoidance of doubt, should the Services be terminated at any time, the Guarantee shall automatically terminate.
6. PAYMENT OF SERVICE FEES AND COSTS:
6.1. Service Fees and Costs shall be paid by the Customer to Netsurit in accordance with the Order as read with the MSA.
7. EARLY TERMINATION OF SERVICE:
7.1. The Netsurit Innovation Services may be terminated by the Customer during a Service Period on the terms and conditions set out below:
7.2. The Customer may terminate the Netsurit Innovation Services for any reason whatsoever upon written notice to Netsurit within the first month of the Initial Service Period, provided that the Customer shall remain liable for the payment of the Service Fee and any Costs payable for such month or incurred by Netsurit prior to termination.
7.3. Should the Customer not terminate the Netsurit Innovation Services within the first month of the Initial Service Period, such Service shall continue to be provided to the Customer, and the Customer shall be liable to pay the Service Fee and any applicable Costs, for the full duration of the Initial Service Period.
7.4. The Customer may terminate the Netsurit Innovation Services after the first month of the Initial Service Period or during any subsequent Service Period, under the following conditions:
7.4.1. The Customer must supply Netsurit with thirty days written notice of termination of the Netsurit Innovation Services, setting forth the reasons for termination.
7.4.2. The Customer shall meet (hereafter referred to as the “Grievance Meeting”) with a Netsurit Account Executive or equivalent representative within FIVE (5) Business Days to develop a remediation plan to permit Customer to withdraw its notice of termination.
7.4.3. If Customer’s concerns are not resolved to the satisfaction of the Customer, then the notice of termination will take effect
8. RESERVATION OF RIGHTS; LIMITATIONS REGARDING SERVICES
8.1. Customer’s Obligations: The Customer acknowledges and accepts that it is solely responsible for:
8.1.1. Ensuring the accuracy and completeness of all data submitted by it to Netsurit to enable the provision of or for the purposes of the Netsurit Innovation Services; and
8.1.2. Checking the accuracy, completeness and relevance of any information provided to it by Netsurit.
8.2. Customer’s Consent to Use of Data: The Customer acknowledges and accepts that, by submitting any data to Netsurit for the purposes of receiving the Netsurit Innovation Services, the Customer consents to and has the necessary authority to permit Netsurit using such data for the purposes and on the terms and conditions set out in these Innovation Service Terms.
8.3. Exclusions: The Netsurit Innovation Services does not include (a) the provisioning of any services in respect of defects or errors resulting from any one or more of the instances set out in clause 4.2 above; and (b) the provisioning of training to the Customer on how to maintain its systems after termination of the Netsurit Innovation Services. These services may be provided to the Customer by Netsurit in terms of a separate agreement entered into between the Parties (which agreement shall set out the Fees and Costs payable by the Customer for such services).
8.4. Suspension of Service: Netsurit reserves the right to suspend the provision of the Netsurit Innovation Services in the event that all Service Fees and Charges payable by the Customer have not been paid in full.
8.5. Information provided by Netsurit: The Customer acknowledges and accepts that all information provided to the Customer by Netsurit during the Service Period for the purposes of providing the Netsurit Innovation Services is:
8.5.1. Based on the data submitted by the Customer to Netsurit, the accuracy and completeness of which cannot be verified by Netsurit;
8.5.2. Provided only for information purposes and shall therefore not in any way be construed as advice; and
8.5.3. Is confidential and, unless otherwise agreed with Netsurit in writing, shall not be disclosed by the Customer to any other third party (save to the Customer’s legal advisors, accountants and technical advisors solely for the purposes of obtaining professional advice thereon).
8.6. Intellectual Property: Any new Intellectual Property developed by Netsurit for the Customer during the course of providing and for the purposes of the Netsurit Innovation Services (including, for example, systems built for the Customer by Netsurit) shall be owned, and may continue to be used after the termination of the Netsurit Innovation Services, by the Customer upon full payment of all relevant Service Fees and Costs payable by the Customer in accordance with these Innovation Service Terms. Netsurit shall have a perpetual, non-terminable, irrevocable, non-exclusive, transferable licence to use, copy, modify and communicate such new Intellectual Property for any purpose in connection with the Netsurit Innovation Services and the resultant works. This clause 8.6 shall survive the termination of these Innovation Service Terms.
