GENERAL TERMS AND CONDITIONS
- Validity of General Terms and Conditions
1.1. General Terms and Conditions. These General Terms and Conditions (hereinafter referred to as the “GTC“) of the Company shall by applied to all of deliveries and provisions of the Products of the Company. The Products of the Company may be sold to the Customers directly by the Company or through the Partner of the Company who is a non-exclusive member of the Company´s Partner Program; in such a case the Partner is considered to be a customer of the Company who subsequently resells the Products of the Company to the Customer. The Contractual Parties acknowledge that the Partner is obliged to provide the Customer with the Products under the same terms and conditions as stated herein.
1.2. Application. These GTC form an integral part of the Agreement and they are fully applicable unless the individual written Agreement provides otherwise. Given the obligation of the Partner to adhere these GTC while reselling the Products to the Customer, these GTC form also an integral part of the Contract with the Partner and provisions of these GTC are applied to relationships between the Company and the Partner established by the Contract within the Partner Program if such an application is stated herein or in the Contract. In the case of discrepancies between an arrangement of mutual rights and obligations of the Participants contained in these GTC and in a separate written Agreement and/or Contract, differing arrangements of the Agreement and/or Contract shall prevail over the wording of GTC, but only to the extent derogating arrangements.
1.3. Changes and Additions. Changes or additions to these GTC are valid and effective only if they are confirmed in writing by the Company. The Participants agreed that the Company is entitled to unilaterally change these GTC and notify the Contractual Party with such changes and the Contractual Party is required to become familiar with such changed GTC. Any general terms and conditions of the Contractual Party are not applicable to the interrelationships of the Participants, not even if the Company provides fulfillment of the Contractual Party without reservation.
1.4. No Third-Party Beneficiaries. The warranties and other obligations of the Company under the Agreement and/or Contract run only to, and for the sole benefit of the Contractual Party of the respective Agreement and/or Contract. Except as otherwise mandated by applicable law, no other person or entity will be considered as a third-party beneficiary of the Agreement and/or Contract or otherwise entitled to receive or enforce any rights or remedies in relation to the Agreement and/or Contract.
2.1. Definitions. In addition to the terms elsewhere defined in these GTC, the following terms used in these GTC shall have the following meanings:
2.1.1 “Affiliate” means, with respect to a Participant, any entity which controls, is controlled by, or is under common control with such Participant, where “control” means the legal, beneficial or equitable ownership of at least a majority of the aggregate of all voting equity interests in such entity, but only for so long as such control exists.
2.1.2 “Agreement” means the agreement concluded between the Company and the Contractual Party relating to deliveries and provisions of the Products of the Company as well as any and all other Documentation relating to this contractual relationship. If the Partner buys the Product according to the Agreement, the Partner is obliged to resell the Product to the Customer and not use it for the Partner’s internal or external purposes or use.
2.1.3 “Contract” means the contract concluded between the Company and the Partner relating to the Partner Program as well as any and all other Documentation regarding this contractual relationship.
2.1.4 “Confidential Information” means non-public information that is disclosed by or on behalf of a Participant under or in relation to the Agreement and/or Contract that is identified as confidential at the time of disclosure or should be reasonably understood to be confidential or proprietary due to the nature of the information and/or the circumstances surrounding its disclosure. Confidential Information does not include information which, and solely to the extent it: (i) is generally available to the public other than as a result of a disclosure by the receiving Participant or any of its representatives; (ii) was known to the receiving Participant prior to the date hereof on a non-confidential basis from a source other than disclosing Participant or its representatives; (iii) is independently developed by the receiving Participant without the benefit of any of the disclosing Participant’s Confidential Information; or (iv) was disclosed by the disclosing Participant to a third party without an obligation of confidence. In any dispute concerning the applicability of these exclusions, the burden of proof will be on the receiving Participant and such proof will be by clear and convincing evidence. Any technical, financial and commercial information, in whatever form, including the contents of the Agreement and/or Contract, price lists for the Products and any future release dates or future functionality of the Products will be deemed the Company’s Confidential Information.
2.1.5 “Delivery Date” means the date on which both the Products specified in the relevant Order Form and/or the license key(s) for the Software are initially made available (via download or otherwise) to the Contractual Party as applicable.
2.1.6 “Documentation” means the then-current documentation relating to contractual relationships according to the Agreement and/or Contract, either in electronic or printed format. The Documentation may be provided by, and modified from time to time in the sole discretion of, the Company and its Affiliates.
2.1.7 “IP Claim” means a claim by a third party against the Contractual Party or its Affiliates that the Products, as delivered by the Company, infringes a third party copyright or trademark, infringes a patent or design issued by any member country of the European Economic Area, or misappropriates a third party trade secret.
2.1.8 “Customer“ means a third party buying the Products of the Company according to the Agreement other than the Partner.
2.1.9 “Partner“ means a partner of the Company who is appointed by the Company as a non-exclusive member of the Company´s Partner Program and who entered into the Contract. The Partner shall have the non-exclusive, non-transferable, non-assignable right to promote, market, solicit orders for, and resell the Products to the Customers; “Authorized Partner“ means a partner of the Company who is authorized to provide the service within the Product which is requested by the Customer.
2.1.10 “Contractual Party“ means both the Customer and the Partner, individually and collectively, as the case may be.
2.1.11 “Company“ means Inphinity Limited.
2.1.12 “Participants” means the Company, Customers and Partners, individually and collectively, as the case may be.
2.1.13 “Order Form” means a written document, pursuant to which the Contractual Party orders the Products.
2.1.14 “Software” means a proprietary software developed and owned by the Company and its Affiliates and licensed under the Company Marks, excluding all third party’s software incorporated therein, provided or made available to the Contractual Party by the Company, in object code form as well as updates thereto.
2.1.15 “IP Rights” means all rights, title and interest in and to any and all forms of intellectual property rights including, without limitation, all patent applications and patents, copyrights, work rights, design rights, trademarks, trade names, domain name rights, trade secret rights, sui generis rights, moral rights, neighboring and other related rights, rights in know-how, confidential information and other trade secret rights, and all other rights associated with the authorship and/or the creation of artistic, intellectual or industrial property; and all forms of protection of a similar nature anywhere in the world and of every kind and nature however designated; whether arising by operation of law, treaty, contract, agreement, or license; whether tangible or intangible; whether or not registered, deposited or published; and including without limitation, (i) all registrations, issuances, reissuances, amendments, extensions, continuations, divisions, licenses, and/or other counterparts thereof, whether in whole or in part, as well as all applications and the right to submit applications for any of the foregoing, and (ii) all legal rights arising from the use of the foregoing, such as (by way of example and not limitation) the right to license or otherwise authorize the transfer to and/or use of the forgoing by any other party and/or to assert a claim, cause of action, or other right arising out of or relating to any actual or threatened infringement by any person relating to the foregoing and recover damages, costs and attorney’s fees for past, present and future infringement, misappropriation or any other violation of any of the foregoing.
2.1.16 “Company Marks” means the worldwide trademarks, service marks, trade names, logos, designs, or slogans of the Company and its Affiliates identifying the Products, whether or not specifically recognized, registered or perfected.
2.1.17 “Materials” means any proprietary materials distributed or made available, directly or indirectly, by the Company to the Contractual Party, and all whole or partial copies thereof, including by way of example but not limited to all: (i) Software and Documentation; (ii) machine readable instructions and code; (iii) technology, files, libraries, modules, menus, algorithms, tools, processes, procedures, calls, routines, meta data, macros, blueprints, templates, scripts, commands, syntax and other components of the Software; (iv) the user interface of the Software and all audio-visual content (such as displays, images, shading, colors, organization, associations, structure, positioning, text, look and feel, recordings, or pictures) associated therewith; and (v) Company’s Confidential Information and (vi) any other Company materials (e.g. license keys, packaging, materials relating to training, education, consulting services and deliverables, maintenance services and deliverables, professional services).
2.1.18 “Products” means the Software, its maintenance, education services, consulting services, and/or any other Company´s products or services, irrespective of whether they are on perpetual, subscription or any other basis, as the same may be modified by the Company from time to time.
2.19 “User License Agreement” means the applicable then-current User License Agreement pursuant to which the Company or its Affiliates license the Customer to use the applicable Software, in the form provided by the Company (or provided by the Partner on behalf of the Company) to the Customer, which is a part of the installation package of the Software in the electronic form (pop-up license) and which will be displayed to the Customer during the installation of the Software, as the same may from time to time be modified in the sole discretion of the Company and its Affiliates.
- Conclusion of the Agreement
3.1. Offer. The Company’s offer to conclude the Agreement to the Contractual Party is not binding, whereas information stated by the Company in the price lists, offer letters and other documents and papers, especially drawings, sketches and technical documents are indicative only, and they become mandatory only in case of explicit written confirmation by the Company according to Section 3.3 hereof.
3.2. Proposal. The Contractual Party shall provide the Company with the proposal to enter into the Agreement, whereas only the proposal submitted by the Contractual Party to the Company in the form of the Order Form is considered as the proposal to enter into the Agreement.
3.3. Confirmation. The Agreement is concluded by the confirmation of the proposal of the Contractual Party made by the Company delivered to the Contractual Party. Factual delivery of the Product or a license key by the Company is deemed to be the confirmation according thereto as well. If the Contractual Party does not receive the confirmation of the Company, the Agreement will not be concluded.
4.1. Products. If not otherwise stated in the Agreement, the Products will be provided and/or delivered to the Contractual Party using reasonable care, skill and diligence consistent with generally accepted industry standards.
4.2. Commencement. The Products are delivered on the Delivery Date. If the Products are on subscription basis the initial subscription period for the Products other than Software shall commence upon the 1st calendar day of month following the month during which the subscribed Products were ordered, if is not otherwise stated in the Agreement.
4.3. Partner Program. If the Products are provided to the Customer by the Partner and not directly by the Company, the Partner is obliged to inform the Customer of the existence of the Partner Program and relationship with the Company and the Partner undertakes to engage the Company in the provision of the Products in order to maximize the added value of the Products for the Customer, unless otherwise agreed in writing between the Company and Partner.
4.4. Forms. If the Product specified as the “Forms General” is provided to the Customer by the Partner, the first-line support (containg an implementation of the Product) shall be provided by the Partner, whereas the second-line support as well as eventual development of the Product may be provided to the Customer only with the participation of the Company. If the Product specified as the “Forms Specific” is provided to the Customer by the Partner, the Partner undertakes to engage the Company in the provision of this Product from the very beginning of its provision. If it is not otherwise agreed, any specific form developed by the Partner must be in compliance with technical parameters and options of standardized Products; the provision of any specific form developed by the Partner will not be subject of the GTC and the Partner is obliged to conclude a specific agreement with the Customer.
- License for Software
5.1. License. Subject to the terms and any applicable restrictions in the Agreement, the Company shall grant to the Customer a world-wide, nonexclusive, non-transferable, non-assignable, revocable, non-sublicensable and limited right to use the Software solely for its internal business operations and in accordance with the Documentation (hereinafter referred to as the “License”). The terms and conditions of the License (including conditions of use, installation, reproduction and duration of the License) are stated in the User License Agreement. The License commences by the successful installation of the Software; the Company shall provide the Customer with license key(s) to the Software within the agreed time period, if it is not agreed, within 30 days from the conclusion of the Agreement. If the Agreement is concluded with the Partner, a delivery of license key(s) shall be provided to the Partner who is obliged to provide the Customer with such a license key(s). Until the payment of the full amount of the Fee the Customer is entitled only to time limited License valid until the Fee is due.
5.2 Subscription. The Software is licensed on a perpetual or subscription basis. If the Software are ordered on a subscription basis, the right to access and use the Software is valid only for the subscription period and in the quantities identified in the Agreement. The initial subscription period for the Software commences upon delivery of the license key; Section 5.1 hereof is not attached.
5.3. Maintenance. Maintenance will be made available in accordance with the Agreement. Maintenance provided by the Company for subscripted Software is included with paid subscriptions of the Software. For all other license types other than the subscripted Software, the Contractual Party is required to purchase maintenance with its initial Software purchase for a minimum twelve-month period following the Delivery Date (hereinafter referred to as the “Initial Maintenance Period”). Maintenance shall automatically renew at the end of the Initial Maintenance Period, and at the end of each subsequent period thereafter, unless the Contractual Party provides the Company with written notice of non-renewal at least forty-five (45) days prior to the end of the then-current maintenance period. Maintenance Fees for any renewal period are subject to increase, provided (i) the Company notifies the Contractual Party of such Fee increase at least sixty (60) days prior to the end of the then-current period; and (ii) the increase does not exceed five percent (5%) of the maintenance Fees for the then-current period.
5.4. Evaluation License. Evaluation licenses are time-limited licenses to the Software that may be requested by the Contractual Partner and provided to the Customer for evaluation and trial purposes.
- Intellectual Property Rights
6.1. Retention of Rights. All IP Rights relating to the Products and the Materials, including all methodologies, designs, improvements to the Products, and know how, will at all times be the exclusive property of the Company and its Affiliates or their respective licensors or vendors, and all use of Company’s IP Rights will accrue to the benefit of the Company and its Affiliates or their respective licensors or vendors. If the Company and/ or its Affiliates or their officer and/or employee during the performance of the Agreement or Contract (even at the request of the Contractual Party) creates any inventions, product or result (e.g. software, data analyses with anonymous data, business intelligence solutions), the Company shall have any and all property rights to such an intellectual property and is entitled to use it without any restriction and limitation.
6.2. Company Marks. The Company’s ownership of, and IP Rights in, the Company Marks and the Materials, and the existence and validity of the respective registrations for the Company Marks are hereby acknowledged. The Contractual Party will not, directly or indirectly, challenge, contest or oppose Company’s and its Affiliates’ title to such IP Rights, including, without limitation, the Company Marks, oppose any registration thereof, or challenge the validity of the Agreement or Contract. Furthermore, the Contractual Party will not use, register, nor attempt to register, any trade name, trademark, service mark, design or domain name which, in whole or in part, incorporates or is confusingly similar to any Company Marks.
6.3. Protection of IP Rights. The Contractual Party agrees to use reasonable efforts to protect Company’s IP Rights and to cooperate in Company’s reasonable efforts to protect its IP Rights.
6.4. Proprietary Rights. Nothing contained in the Agreement or Contract will constitute or be construed as a transfer of ownership of any of the IP Rights of the Company or its Affiliates or licensors or to otherwise transfer ownership to the Contractual Party of any proprietary rights to the Products or the Materials. The Contractual Party will have no right, title or interest in the Products or Materials except as expressly set forth in the Agreement or Contract. At the Company’s request, the Contractual Party will execute any instruments reasonably requested by the Company to perfect the Company’s or its Affiliates’ exclusive ownership rights in the Products. In the event that the Contractual Party makes suggestions to Company regarding new features, functionality or performance that the Company adopts for the Products, such new features, functionality or performance shall be deemed to be automatically assigned under the Agreement or Contract to, and shall become the sole and exclusive property of, the Company.
6.5. Third Party Materials. The Products may include certain open source or other third-party software, data, or other materials (hereinafter referred to as the “Third Party Materials”) that are separately licensed by their respective owners. The applicable license terms and information relating to such Third-Party Materials, including any availability of source code, may be found within the Documentation. The Contractual Party shall abide by all such license terms including, without limitation, any provisions governing access to source code or modification. COMPANY MAKES NO REPRESENTATION, WARRANTY, OR OTHER COMMITMENT REGARDING THE THIRD-PARTY MATERIALS. COMPANY HEREBY DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO CONTRACTUAL PARTY’S USE OF ANY THIRD-PARTY MATERIALS AS APPLICABLE IN ACCORDANCE WITH LAW.
6.6. Restrictions. The Contractual Party will not (nor will it permit any third party to): (a) copy or manufacture the Products or any portion thereof or bypass or delete any copy protections thereon that are intended to prevent unauthorized copying or use of the Products; (b) port, modify, adapt, enhance, extend, decompile, disassemble, reverse engineer or otherwise attempt to derive the source code of the Software by any means whatsoever; (c) modify, adapt, alter, translate or create any derivative work from the Products or the Documentation; (d) distribute the Software as a stand-alone product or incorporate or bundle the Software into or with any hardware or software other than the approved by the Company; or (e) combine or integrate the Products with the Contractual Party´s solution or any other solutions (e.g. software, hardware, services) that results in the infringement of any Company or third party’s IP Rights.
6.7. Notification. The Contractual Party will promptly notify the Company of any actual, threatened or suspected infringement of the Company Marks or Company’s other IP Rights relating to the Products, as well as any claims or allegations that the Products infringe the rights of any third party.
6.8. Contractual Party´s Solutions. The Contractual Party represents and warrants that it has the full applicable legal rights to license, market, copy, sell, distribute, maintain, and otherwise use their solutions, including but not limited to the right to integrate the Contractual Party´s solutions into the Products and market, license, sell and distribute the software containing the Contractual Party´s solutions, and to otherwise fulfill all of the Contractual Party´s obligations under the Agreement or Contract.
6.9. Access and Security. The Customer shall maintain reasonable technical and procedural access controls and system security to safeguard the Software and shall be directly responsible for any violations of the IP Rights by anyone that it or any of its Affiliates has allowed to access the Software.
6.10. Material Breach. The Contractual Party’s noncompliance with the rules set forth in this Clause 6 hereof, shall be a material breach of the Agreement and/or Contract.
- Infringement of Third-Party IP Rights
7.1. Exclusions. The Company will have no liability to any Contractual Party indemnitee for any Third Party IP Claim that: (a) arises out of any unauthorized use, reproduction, or distribution of any Product by the Contractual Party, or any Contractual Party Affiliate, sub-partner or customer; (b) arises out of any modification or alteration of the Products by anyone other than the Company; (c) arises out of the use of the Products in combination with any other software or equipment not expressly supported in the Documentation; (d) arises out of any combination of the Contractual Party´s solution and the Product; or (e) would have been avoided by use of the latest update of the Products.
7.2. Remedies. In addition, if any Product becomes, or in the Company’s opinion is likely to become, the subject of a Third Party IP Claim, the Company may, at its own expense and option, elect to either: (a) procure the right to continue using the Product in accordance with the provisions of the Agreement; (b) make such alterations, modifications or adjustments to the Product so that the infringing Product becomes non-infringing without incurring a material diminution in performance or function; (c) replace the Product with a non-infringing substantially similar substitute; or (d) if neither (a), (b) nor (c) can be achieved after the exercise of commercially reasonable efforts, terminate the licenses for the affected Product and refund to the Contractual Party: (i) all amounts paid by the Contractual Party to Company as the Fee with respect to the affected Product, less an amount equal to depreciation of such Fee calculated on a three-year straight-line basis from the date of delivery.
7.3. Procedures. All indemnification obligations as set out in this Clause 7 are subject to the following requirements: (a) the Contractual Party will provide the Company with prompt written notice of any such action or claim; (b) the Contractual Party will permit the Company to assume and control the defense and settlement of any such action or claim; (c) the Contractual Party will not prejudice the defense of the action or claim; (d) the Contractual Party will mitigate such damages, costs and expenses, as far as reasonably possible; and (e) the Contractual Party will provide the Company with such assistance, documents, authority and information as it may reasonably require in relation to the action or claim and defense or settlement thereof.
7.4 THIS CLAUSE 7 STATES THE COMPANY’S ENTIRE LIABILITY, AND THE CONTRACTUAL PARTY’S SOLE REMEDIES, FOR CLAIMS FOR INFRINGEMENT OF THIRD-PARTY IP RIGHTS. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS SECTION 7 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Warranty and Disclaimers
8.1. Software. The Company warrants that the initial version of the Software delivered under the Agreement will, for a period of ninety (90) days from its Delivery Date (“Warranty Period”), operate substantially in conformity with its applicable Documentation and the Agreement. The Contractual Party must assert any claim for breach of this warranty within the Warranty Period.
8.2. Software Remedies. For any claimed breach of this warranty, the Contractual Party must notify the Company of the warranty claim within five (5) business days since the Contractual Party has become awareness of the defect or malfunction of the Software. The Contractual Party’s exclusive remedy and Company’s sole liability with regard to any breach of this warranty will be, at Company’s option and expense, to either: (i) repair or replace the non-conforming Software; or (ii) if the Software was obtained by purchase (and not as a result of a conversion from a previously purchased Software), refund to the Contractual Party the Fee paid by the Contractual Party for the non-conforming Software; or (iii) if the Software was obtained as a result of conversion from a previously purchased Software, require the Software to be uninstalled by the Customer and reversion to the prior Software.
8.3. Software Refoundation. If the Company elects to refund the applicable Fee paid for the nonconforming Software pursuant to Section 8.2. (ii) hereof, then: (i) the non-conforming Software and any other related materials provided by the Company shall be promptly returned or the Contractual Party shall demonstrate to the Company’s reasonable satisfaction that the non-conforming Software and any other related materials provided by the Company have been destroyed; and (ii) the licenses for such nonconforming Software will automatically terminate.
8.4 Software Warranty Restrictions. The Company will have no liability for any warranty claim, or any obligation to correct any defect or problem with the Software, to the extent that it arises out of: (i) any use of the Software not in accordance with the Documentation; (ii) any unauthorized modification or alteration of the Software; or (iii) any use of the Software in combination with any third-party software or hardware not specified in the Documentation; or (iv) any Force Majeure; or (v) corrosive environments, excessive wear and tear, lightning, neglect, carelessness, accident, abuse, misuse, improper or abnormal use of equipment used in connection with the Software; or (vi) any defect or failure to perform resulting from misapplication, improper installation, improper operation.
8.5. Other Products. The Company warrants that Products other than Software will be performed using reasonable care and skill consistent with generally accepted industry standards.
8.6 Other Products Remedies. For any claimed breach of this warranty, the Contractual Party must notify the Company of the warranty claim within ten (10) business days of the Contractual Party’s receipt of the applicable Products. The Contractual Party’s exclusive remedy and the Company’s sole liability with regard to any breach of this warranty will be, at the Company’s option and expense, to either: (i) reperform the non-conforming Products; or (ii) refund to the Contractual Party the Fee paid for the non-conforming Products to the Company. The Contractual Party shall provide reasonable assistance to the Company in support of its efforts to furnish a remedy for any breach of this warranty.
8.7 Other Products Restrictions. The Company will have no liability for any warranty claim, or any obligation to correct any defect or problem with the Products other than the Software, to the extent that it arises out of: (i) any use of the Product not in accordance with the Documentation; (ii) any unauthorized modification or alteration of the Product; or (iii) any Force Majeure; or (v) corrosive environments, excessive wear and tear, lightning, neglect, carelessness, accident, abuse, misuse, improper or abnormal use of equipment used in connection with the Products.
8.8. Procedures. The Company will have a reasonable time to remedy the Contractual Party in accordance with Clause 8 hereof, if not otherwise stated in the Agreement. All activities referred to this Clause 8 will be executed at the cost of the Company only if and to the extent that the work is attributable to the Product not being in accordance with the warranty stated herein. If the activities referred to Clause 8 are attributable to any other cause or caused or contributed to by an act or an omission of the Contractual Party in the performance of the Agreement, or are outside the Warranty Period, the Company will be entitled to a fair compensation from the Customer. The Contractual Party shall ensure that the Company has access to all items required to undertake the work needed to remedy the defects. The Contractual Party shall provide assistance and facilities as may be reasonably required by the Company or its employees for the investigation and remedial works set forth in this Clause. Such assistance includes allowing access to all specifications, designs, records or other available information. The Company will have no liability under the warranty stated herein (i) unless the Company is notified in writing promptly upon the Contractual Party’s discovery of the failure or defect; or (ii) in the event that the Contractual Party is in breach of Contractual Party’s payment obligations hereunder.
8.9. EXCEPT AS EXPRESSLY SET FORTH IN THIS CLAUSE, THE COMPANY MAKES NO WARRANTIES WITH RESPECT TO THE PRODUCTS OR ANY OTHER SUBJECT MATTER OF THE AGREEMENT AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THE COMPANY HAS BEEN INFORMED OF SUCH PURPOSE). IF A WAIVER, RIGHT, OR REMEDY IS EXERCISED PURSUANT TO MANDATORY LAW, IT SHALL BE EXERCISED SOLELY FOR THE PURPOSE PROVIDED AND IN CONFORMANCE WITH THE PROCEDURES AND LIMITATIONS EXPRESSLY PROVIDED FOR BY SUCH LAW. COMPANY DOES NOT WARRANT THAT THE PRODUCTS WILL BE ENTIRELY FREE FROM DEFECTS OR OPERATE UNINTERRUPTED OR ERROR FREE.
- Limitations of Liability
9.1 IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR RESPECTIVE SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOSS OF SAVINGS, PROFITS OR REVENUES, LOSS OR CORRUPTION OF DATA, GOODWILL, OR REPUTATION, INACCURACY OF ANY DATA, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR SOFTWARE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWSOEVER ARISING AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
9.2. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS OF THE COMPANY ARE INDEPENDENT OF ANY AGREED REMEDY AND WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY AGREED REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE EXTENT THAT THE COMPANY MAY NOT, AS A MATTER OF LAW, DISCLAIM ANY WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE OR DURATION OF SUCH WARRANTY AND THE EXTENT OF THE COMPANY’S LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. IF A WAIVER, RIGHT, OR REMEDY IS EXERCISED PURSUANT TO MANDATORY LAW, IT SHALL BE EXERCISED SOLELY FOR THE PURPOSE PROVIDED AND IN CONFORMANCE WITH THE PROCEDURES AND LIMITATIONS EXPRESSLY PROVIDED FOR BY SUCH LAW.
9.3. The Company’s and its Affiliates’ maximum, cumulative liability for damages under the Agreement, regardless of the form of action, whether in contract, tort (including but not limited to negligence or strict liability) or otherwise shall in no event exceed the aggregate amount of the Fees paid by the Contractual Party for the Products which is the subject of the claim for the first twelve (12) months of the Agreement.
- Indemnification by Contractual Party
10.1. Indemnification by Contractual Party. The Contractual Party shall indemnify, defend and hold the Company harmless from any and all damages and reasonable and verifiable costs and expenses (including without limitation reasonable attorneys’ fees) that may be incurred by the Company in connection with or arising out of: (a) any breach by the Contractual Party, any Contractual Party´s Affiliate or any sub-partner of any representations, warranties or covenants under the Agreement or Contract; (b) any performance or non-performance of the Contractual Party, any Contractual Party Affiliate or any sub-partner in violation of the Agreement or Contract or any breach of the terms, restrictions or obligations set forth herein; (c) any third-party claim that the Contractual Party solution(s) or any modification or alteration to the Product, or any combination of the Contractual Party solution and the Product made by the Contractual Party or the Contractual Party´s customers, Affiliates or sub-partners infringe any patent, copyright, or trademark, or misappropriate any trade secret of a third party, except to the extent any such infringement or misappropriation arises solely on account of an unmodified Product.
10.2. Material Breach. The Contractual Party’s noncompliance with the rules set forth in this Clause 10 hereof, shall be a material breach of the Agreement and/or Contract.
- Other Provisions
11.1. Non-Exclusivity. All rights granted to the Contractual Party under the Agreement and/or Contract are non-exclusive. The Company reserves the right to market, promote, distribute, sell, and grant licenses for the Products and provide the Products to third persons without any limitations, and nothing in the Agreement and/or Contract will be construed as limiting in any manner Company´s right to appoint other distributors, resellers, OEM partners, licensees or agents, or from directly or indirectly marketing, reproducing, distributing, licensing in connection with the Products worldwide. All rights not expressly granted by the Company to the Contractual Party are reserved to Company.
11.2. Feedback. The Contractual Party is not obligated to provide the Company with any suggestions or feedback about the Products, but if the Contractual Party elects to do so, the Company may use and modify this feedback for any purpose, including developing and improving the Products, without any liability, restriction, or payment to the Contractual Party.
11.3. Referrals and case studies. The Contractual Party hereby grants the Company the right to list the Contractual Party as a customer or partner of the Company in marketing materials such as the Company web site, customer-facing presentations and press releases. The Contractual Party undertakes to provide the Company with authorization to use case studies for the purpose of marketing and promoting the Products and the Company; “user case study” means a description of the deployment of the Products by the Customer, including the Customer name, the Customer´s representative testimonial and contact information, key performance indicators, challenges, solutions etc.
11.4. Penalty. The Company shall be entitled to a contractual penalty against the Contractual Party in amount of EUR 10,000 for each following individual breach of the obligation under: Clause 6, Clause 10 and Clause 12 hereof; the contractual penalty shall be due immediately after the request of the Company such a contractual penalty. Payment of the contractual penalty shall be without prejudice to incurred damage.
12.1. Confidentiality. Each Participant will hold in confidence the other Participant’s Confidential Information and will not disclose or use such Confidential Information except as necessary to exercise its express rights or perform its express obligations hereunder.
12.2. Disclosure. Any Participant’s disclosure of the other Participant’s Confidential Information may be made only to those of its employees or consultants who need to know such information in connection herewith and who have agreed to maintain the Confidential Information as confidential as set forth herein. The receiving Participant shall not circulate Confidential Information within its own organization or that of its Affiliates or sub-partners except to those employees or consultants who need to know such information in connection with the business relationship between the Participants. Notwithstanding the foregoing, a Participant may disclose the other Participant’s Confidential Information to the extent that it is required to be disclosed in accordance with an order or requirement of a court, administrative agency or other governmental body, provided that such Participant, to the extent permitted by law, provides the other Participant with prompt notice of such order or requirement in order that it may seek a protective order.
12.3. Duration. Each Participant’s confidentiality obligations hereunder will continue for a period of five (5) years following any termination of the Agreement or Contract, provided, however, that each Participant’s obligations will survive and continue in effect thereafter with respect to, and for so long as, any Confidential Information continues to be a trade secret under applicable law or personal data under GDPR.
12.4. Retention. All Confidential Information supplied by the disclosing Participant to the receiving Participant pursuant to the provisions of the Agreement and/or Contract, together with all copies thereof, will remain the property of the disclosing Participant.
12.5. Injunctive Relief. The Contractual Party acknowledges and agrees that, due to the unique nature of the Company´s Confidential Information, there can be no adequate remedy at law for breach of this Clause and that such breach would cause irreparable harm to the Company; therefore, the Company will be entitled to seek immediate injunctive relief, in addition to any remedies otherwise available at law or under the Agreement and/or Contract.
12.6. Material Breach. The Contractual Party’s noncompliance with the rules set forth in this Clause 12 hereof, shall be a material breach of the Agreement and/or Contract.
- Data Protection
13.1 GDPR. The Company hereby confirms, that the Company processes the personal data of data subjects in accordance with General Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of personal data (hereinafter referred to as “GDPR”).
13.2 Processing the personal data. The Company processes the personal data of data subjects, in particular the Contractual Party´s employees, its statutory representatives or other contacts persons with whom communication is necessary for the performance of the Agreement and Contract. The Contractual Party hereby undertakes to make the information obligation hereunder available to the data subjects.
13.3 Recipients. The Company shall not disclose or provide personal data of the data subjects to third parties or entities, with the exception of entities that provide the Company with accounting services, legal services, IT services, etc., and shall therefore be deemed to be recipients within the meaning of GDPR. In the case that it is regulated by law, personal data may also be provided to public authorities.
13.4 Personal data. The Company is processing only common personal data of the data subjects, in particular: name, surname, e-mail address, telephone contact.
13.5 Purpose. Personal data are processed for the purposes of the proper performance of the Agreement and Contract, as well as the exercise of rights and fulfillment of obligations related to the contractual relationship between the Company and the Contractual Party.
13.6 Legal base. Legal base of processing of personal data is the legitimate interest according to Article 6 (1) f) GDPR. The legitimate interest in this situation is interest of the Company and Contractual Party in conclusion and performance of the Agreement and Contract, whereas personal data of data subjects that are not parties (e.g. statutory representatives, authorized employee) are processed. The processing of personal data of these data subjects must be carried out in accordance with the applicable legal regulations, which the Company ensured in the sense of the principle of adequacy by justified legitimate interest.
13.7 Duration. Personal data will be processed for no longer than is necessary for fulfillment of the purpose of personal data processing, i.e. at least ten (10) years after the date of termination of the Agreement and Contract.
13.8 Rights. The data subject have several rights according to GDPR, namely the right to access personal data under Article 15 of the GDPR, the right for reparation and/or supplementation of personal data under Article 16 GDPR, the right to delete personal data under Article 17 GDPR, the right to limit processing of personal data under Article 18 GDPR, the right to object against processing of personal data in cases under Article 21 GDPR and the right to fill a complaint with the supervisory authority – the Office for Personal Data Protection (in United Kingdom). Individual rights can be claimed by sending a request to the Company ‘s email address: firstname.lastname@example.org or by sending a written request to the Company s registered office.
13.9 Other Information. The provision of the personal data of the data subject is voluntary, but failure to do so may result in the inability to properly perform the Agreement and the obligations arising therefrom. More information on the processing of personal data by the Company are available at: email@example.com.
- Fees and Taxes
14.1. Fees. The Contractual Party shall pay any fees due in accordance with the payment terms set forth in the Agreement (hereinafter referred to as the “Fee” or collectively “Fees”). If the Products are reselling by the Partner, the Customer is obliged to pay the Fee directly to the Partner. The Fees are not subject to any right of offset or suspension and all payments shall be non-cancelable, non-refundable and non-creditable, except as otherwise expressly provided in the Agreement. Fees do not include sales, use, withholding, value-added or other taxes or duties. The Contractual Party agrees to pay all applicable taxes, public fees, duties, deductions or withholdings for which the Company is required to pay or account, exclusive of any tax on the Company’s income. The Customer shall directly pay any such taxes or duties assessed against it, unless the Customer provides the Company in a timely manner with a valid certificate of exemption or other evidence that items are not taxable.
14.2. Fees for subscriptions. If applicable, the Fees for subscriptions may be prorated to the next billing period. Any proration will not relieve the Contractual Party’s obligation for the total Fees due for the full Initial Maintenance Period.
14.3 Payment. The Contractual Party agrees to pay all Fees within thirty (30) days from the date of the Company’s invoice. If the Contractual Party fails to pay any Fee when due, the Company may charge the Contractual Party with the contractual penalty in the amount of 1.5% per month on the unpaid balance from the due date. In addition, the Company shall be entitled at its own discretion to withhold further deliveries of the Products to the Contractual Party.
14.4. Failure to Pay. The failure by the Contractual Party to make any payment when due hereunder will constitute a material breach of the Agreement.
14.5. Partial Payments. Payments received from the Contractual Party shall be primarily used for the payment of contractual penalties and default interest, and only subsequently for the payment of a principal of the receivable, regardless of different specification by the Contractual Party.
14.6. Persistent Obligation. The Contractual Party is not entitled to withhold payments of the agreed Fee due to ongoing reclamation of the Products delivered by the Company, or due to the existence of claims from defects of the Products or claims for damages.
- Term and Termination
15.1. Term. The Agreement shall become effective as of the date of conclusion of the Agreement in accordance with Section 3 hereof and shall remain in effect until terminated (i) automatically upon expiration of all rights and obligations pursuant to the Agreement, or (ii) pursuant to a breach or insolvency as set forth in Section 15.4. hereof, or (iii) by notice as stated in Section 15.2. hereof, or (iv) by agreement on termination concluded between the Company and Contractual Party.
15.2. Termination by Notice. Unless otherwise specified in the Agreement, either the Company or Contractual Party may terminate by notice the Agreement upon thirty (30) days’ after written notice to the other Participant.
15.3. Subscription. Subscriptions shall automatically renew for successive additional periods equal to the initial subscription period unless either the Company or Contractual Party provides prior written notice of non-renewal to the other Participant at least forty-five (45) days prior to the end of the then-current subscription period. Subscriptions may not be cancelled in whole or in part during any subscription period. Upon renewal, subscription Fees are subject to increase based on prevailing rates at the time of renewal. If the subscription is not renewed, the Contractual Party’s right to access and use Products shall cease at the end of the then-current subscription period, unless earlier terminated.
15.4. Termination for Breach or Insolvency. Either the Company and the Contractual Party may terminate the Agreement (without resort to court or other legal action) if the other Participant: (i) fails to cure a material breach within ten (10) days after written notice of such breach, provided that the Company may terminate the Agreement immediately upon any breach of obligations of the Contractual Party stated in Clause 6 and Clause 12; (ii) terminates or suspends its business without a successor; (iii) becomes insolvent, admits in writing its inability to pay its debts as they become due, makes an assignment for the benefit of creditors, or becomes subject to control of a trustee, receiver or similar authority; or (iv) becomes subject to any bankruptcy or insolvency proceeding.
15.5. Effect of Termination. Upon termination of the Agreement, the Contractual Party shall: (i) immediately cease using the applicable Products, including the Software and Documentation or ensure that the Products will not be used; and (ii) certify to the Company within thirty (30) days after expiration or termination that the Contractual Party has destroyed, ensured to destroy or has returned to the Company all copies of the applicable Software, any associated license keys, the Documentation (if possible) and all other the Company Confidential Information in its possession. If the Software was provided on perpetual basis, the obligation of the Contractual Party stated in the previous sentence shall not applied. Termination of the Agreement shall not prevent either the Company or the Contractual Party from pursuing all available legal remedies, nor shall such termination relieve the Contractual Party’s obligation to pay all Fees that are owed as of the effective date of termination. All provisions of the Agreement relating to the Company’s ownership of the Products, IP rights, limitations of liability, disclaimers of warranties, confidentiality (for the time periods specified in the Agreement), waiver, audit and governing law and jurisdiction and those rights and obligations which by their nature are intended to survive, will survive the termination of the Agreement.
- General Provisions
16.1 Recordkeeping, Verification and Audit. While the Agreement and/ or Contract is in effect and for one (1) year after the effective date of its termination, upon request by the Company but not more than once per calendar year, the Contractual Party shall conduct a self-audit of the Products and, within ten (10) business days after receipt of such request, submit a written statement to the Company verifying that it is in compliance with the terms and conditions of the Agreement and/or Contract. The Company shall have the right, on its own or through its designated agent or third-party accounting firm, to conduct an on-premises audit of the Contractual Party’s use and deployment of the Products for compliance with the Agreement or Contract. The Company’s written request for audit will be submitted to the Contractual Party at least fifteen (15) days prior to the specified audit date, and such audit shall be conducted during regular business hours and with the goal of minimizing the disruption to the Contractual Party’s business. If such audit discloses that the Contractual Party is not in material compliance with the terms of the Agreement and/or Contract, then the Contractual Party shall be responsible for the reasonable costs of the audit, in addition to any other fees or damages to which the Company may be entitled under the Agreement and/or Contract and applicable law.
16.2 Evaluation. If the Customer is provided Products for evaluation purposes, use of the Products is only permitted in a non-production environment and for the period limited by the corresponding license key or the time period stated in the Agreement. Notwithstanding any other provision in the Agreement, evaluation licenses and services for the Products are provided “AS-IS” without indemnification, maintenance and support, or warranty of any kind, expressed or implied.
16.3. Assignment. The Contractual Party will not assign or transfer the Agreement and/ or Contract or its rights and obligations hereunder to any third party without the prior written consent of the Company. For purposes of this Section, any change of control of the Contractual Party, whether by merger, sale of equity interests or otherwise, will constitute an assignment requiring the prior written consent of the Company. Any attempt by the Contractual Party to assign the Agreement and/ or Contract or its rights and obligations hereunder in violation of this Section will be null and void. The Company is free to assign or transfer any or all of its rights or obligations under the Agreement and/or Contract at its discretion. All terms of the Agreement and/or Contract will be binding upon, inure to the benefit of, and be enforceable by and against the respective successors and permitted assigns of the Company and Contractual Party.
16.4. Statistical Data Collection and Use. The Company may collect and use certain statistical data to enable, optimize, support, and improve performance of the Products. “Statistical Data” means nonpersonal statistical, demographic, or usage data or metadata generated in connection with any use of the Products. Statistical Data does not include any personally identifiable information or any personal data and is owned by the Company.
16.5. Compliance with Laws. The Contractual Party agrees at all times to comply with all applicable laws and regulations in its performance of the Agreement and/or Contract, which may include, without limitation, E.U. export control laws and regulations, and regulations declared by the Council of the E.U. and their counterparts under applicable law (hereinafter referred to as the “Export Control Laws”). The Contractual Party will indemnify, defend and hold harmless the Company and its respective officers, agents and employees from and against any and all losses, costs, claims, penalties, fines, suits, judgments and other liabilities (including applicable attorney’s fees) arising out of, relating to or resulting from the Contractual Party’s failure to comply with any Export Control Laws.
16.6. Force Majeure. Neither Participant shall be liable to the other for any delay or failure to perform any obligation under the Agreement and/or Contract (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the effective date of the Agreement and/or Contract and which are beyond the reasonable control of the Participants, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected Participant from fulfilling its obligations and such Participant is not able to prevent or remove the force majeure at reasonable cost.
16.7. Notices. All notices and other communications given or made pursuant to the Agreement and/ or Contract concerning a breach, violation or termination hereof will be in writing and will be delivered: (a) by certified or registered mail; or (b) by an internationally recognized express courier. Delivery of any and all writings under the Agreement and/or Contract shall be deemed effective in case of personal delivery to the hands of the addressee at the time of delivery and in case of delivery by registered mail on the business day in which the delivering consignment will return as non-delivered.
16.8. Relationship between the Participants. The Participants are independent contractual parties. Nothing in the Agreement and/or Contract will be construed to create an agency, joint venture, partnership, fiduciary relationship, joint venture or similar relationship between the Parties.
16.9. Waiver. No term of the Agreement and/or Contract will be deemed waived and no breach excused unless such waiver or excuse shall be in writing and signed by the Participant issuing the same.
16.10. Equitable Relief. The Contractual Party acknowledges that the Company may be irreparably harmed by a breach of the terms of the Agreement and/or Contract and that damages, alone, may not be an adequate remedy. The Contractual Party agrees that, in addition to any other rights or remedies permitted under applicable law, the Company will have the right to enforce the Agreement and/or Contract by injunctive or other equitable relief without the need to prove actual damages or post a bond.
16.11. Limitation. Subject to limitation permitted by the applicable law, no action, regardless of form, arising out of the Agreement and/or Contract may be brought by the Contractual Party more than one (1) year after the cause of action arose.
16.12. Entire Agreement/Contract; Severability; Language. The Agreement and/ or Contract is the complete statement of the mutual understanding of the Participants and supersedes and cancels all previous written and oral agreements and communications pertaining to the subject matter of the Agreement and/or Contract. If any provision of the Agreement and/ or Contract is found by a court of competent jurisdiction to be invalid or unenforceable, that provision will be limited to the minimum extent necessary so that the Agreement and/ or Contract will otherwise remain in force and effect. The English language version of the Agreement and/or Contract shall be the governing version used when interpreting or construing the Agreement and/or Contract.
16.13. Governing Law. The Agreement and Contract and the relations arising from them shall be governed by the laws of the United Kingdom, in particular to the Commercial Code and other applicable laws and regulations of the United Kingdom. The application of any collision norm that would determine law other than United Kingdom law is hereby expressly excluded (including the United Nations Convention on Contracts for the International Sale of Goods).
16.14. Dispute Resolution. Any and all disputes in connection with the Agreement and Contract, shall be referred to the relevant court of the United Kingdom.