Schedule 1 of Part B - Obligations of a Self-Managed Member
Effective as of 31 January 2022
This Schedule applies only to Self-Managed Members.
1. Hosting of Software
1.1 The Member shall be responsible for installing and maintaining its copy of the Licensed Software on the Member’s own infrastructure in accordance with the terms of this Agreement, the Licensed Documentation and the Support Handbook. The Member shall host and maintain the Licensed Software at its own risk and Contour shall not be liable for any failure by the Member to do so or for any consequences arising from the Member’s failure to do so.
1.2 Subject to Clause 8 of this Schedule 1 of Part B, the Member may also outsource the hosting of the Licensed Software to Member Service Providers.
1.3 The Member shall be responsible for all costs and expenses incurred by it in complying with its obligations under this Clause 1 of this Schedule 1 of Part B.
2.1 Contour shall provide an electronic copy of the Licensed Software and the Licensed Documentation to the Member. The Member shall install and set up the Licensed Software in accordance with the relevant provisions of the Licensed Documentation and Support Handbook. Contour shall not be responsible for the Member’s installation and set-up of the Licensed Software.
2.2 If the Member requires:
2.2.1 technical assistance, support and consulting services; or
2.2.2 a customised or bespoke implementation of the Licensed Software, in connection with its installation of the Licensed Software, Contour may provide such services in accordance with the rates as set out in each Order Form, or a separate professional services
arrangement (as applicable).
2.3 The Member may make a reasonable number of copies of the Licensed Software for security back-up and normal operational purposes. All copies of the Licensed Software are subject to the terms and conditions of this Agreement. No further copies of the Licensed Software may be made.
3. Recommended Technical Standards
3.1 The Member is responsible for ensuring that the infrastructure used by it to host the Licensed Software complies with the recommended technical standards as set out in the Support Handbook.
4. Contour Application Upgrades
4.1 Contour will provide the Member with access to Upgrades of the Contour Application that Contour develops together with any updated Contour Application Documentation.
4.2 The Member shall implement: (a) any Upgrades promptly, and (b) each New Version of the Contour Application, and shall cease Using any previous version of the Contour Application, within ninety (90) days of the release of the relevant New Version (the “Upgrade Period“).
4.3 Notwithstanding Clause 4.2 of this Schedule 1 of Part B0, Contour shall have the right to require the Member to promptly implement any emergency Upgrades that are necessary for the security and integrity of the System.
4.4 Contour shall have no liability for any claims that may arise as a result of, and assumes no responsibility for the correctness of, performance of, or any resulting incompatibilities with, current or future releases of the Contour Application if Member: (a) fails to implement a New Version within the relevant Upgrade Period, or (b) has made or implemented changes to the system hardware/software configuration inconsistent with the Contour Application Documentation or the Support Handbook.
5. Failure to Upgrade
5.1 Contour shall have the right to temporarily suspend the Member’s Use of the Contour Application in the event that the Member has failed to implement a New Version of the Contour Application within the Upgrade Period.
5.2 The Member shall not be required to pay any Transaction Fees in respect of each Contour Identity suspended pursuant to Clause 5.1 of this Schedule 1 of Part B during the period of the suspension.
6. Co-operation with Contour
6.1 The Member shall at all times follow instructions provided by Contour and provide all assistance and co-operation to Contour as reasonably requested from time-to-time, including (but not limited to) carrying out instructions from Contour on the actions required to resolve issues with the Licensed Software (including issues identified by the Member).
6.2 Where the Member is not able to carry out Contour’s instructions either at all in or in a timely manner, the Member shall notify Contour as soon as possible and the Parties shall discuss in good faith how best to resolve.
7.1 Contour and its Affiliates and their respective auditors have the right to carry out reasonable audit and inspection of the Member’s compliance with its obligations under this Schedule 1 of Part B, upon providing reasonable prior notice to the Member (which shall be least one month’s notice unless there are justifiable reasons for providing a shorter notice) and provided that Contour’s auditors have entered into a non-disclosure agreement in advance of such visit on terms no less onerous than those set out in this Agreement. Contour shall procure that its employees, agents or directors will comply with the Contour’s confidentiality obligations hereunder and are fully aware of the confidential nature of the information they will receive and they will treat such information as Confidential Information. The Member shall provide reasonable access to its facilities to enable Contour to carry out such audit and inspection rights.
8. Member Service Providers
8.1 Subject to Clause 8.2 of this Schedule 1 of Part B and the other terms, conditions, obligation and restrictions set forth in this Agreement, the Member shall have the right during the Agreement Term to permit Member Service Providers to use the Licensed Materials for the sole purpose of providing services to Member for Member’s receipt of the Licences in connection with the Contour Application.
8.2 Member Service Provider Agreements.
8.2.1 If the Member wishes to engage a Member Service Provider, the Member shall enter into an enforceable agreement with each Member Service Provider containing provisions that, at a minimum:
(a) do not permit such Member Service Provider, when providing services to the Member, to use the Licensed Materials outside of the scope of the Licences;
(b) restrict such Member Service Provider from granting any further licences or sublicences of the Licensed Software, or providing or otherwise making available any parts of the Licensed Materials in any form, to any person or entity other than Member;
(c) require such Member Service Provider to protect the Licensed Materials in accordance with the licence restrictions set forth in Clause Part A8 of this Part A; and
(d) require such Member Service Provider to adhere to confidentiality obligations that are substantially similar to, no less restrictive than, and do not contradict, conflict and are consistent with, Clause Part A21 of Part A,
(each, a “Member Service Provider Agreement“).
8.2.2 The Member shall enforce the provisions of all Member Service Provider Agreements, including: (a) promptly notifying Contour in writing of such violation, and (b) pursuing a damages claim (or authorising Contour to pursue such damage claim on its behalf) against any Member Service Provider who failed to comply with such restrictions. The Member shall at all times remain ultimately responsible and liable for the compliance by each Member Service Provider with each Member Service Provider Agreement.
8.3 The Member shall at all times remain ultimately responsible and liable for the compliance by each Member Service Provider with all of the provisions of this Agreement. Any act or omission of any Member Service Provider shall be deemed to be an act or omission of the Member.
9.1 Indemnification by Self-Managed Members. Member, at its own expense, will indemnify, defend and hold harmless the Contour Indemnitees from and against any and all Losses directly resulting from any Third Party Claim against any Contour Indemnitee:
9.1.1 alleging that the Licensed Materials infringes on, constitutes a misappropriation of or otherwise violates any Intellectual Property right of any Third Party solely where Clause 13.1.3(a), Clause 13.1.3(c), Clause 13.1.3(d), Clause 13.1.3(e) or Clause 13.1.3(f) of Part A applies;
9.1.2 alleging that any Member Data infringes or constitutes a misappropriation of or otherwise violates any Intellectual Property rights of any Third Party or was used without the Member having obtained all required consents and approvals; and
arising from the Member’s breach of its obligations under Clause 8 of Schedule 1 of Part B.